Court of Appeals’ Memorandum Decision Discusses the Role and Correct Use of a Parenting Coordinator

by Annette Burns on February 18, 2011

An August 2010 memorandum decision* of the Court of Appeals, Div. 1, offers some instruction on the parties' and Court's use of a Parenting Coordinator, in this case in a high-conflict post-dissolution case in which litigation is ongoing several years after the final Decree was entered. Kelledy v. Cockerham, 1-CA-CV 09-0093, August 12, 2010.

The high conflict nature of this decision is perhaps best demonstrated by the fact that the parents were divorced in August 2000, and they continued to spend several days a year in court, on custody issues, well into 2010. The Parenting Coordinator was appointed in 2008 and given the authority stated in Rule 74, Arizona Rules of Family Law Procedure. The PC made several recommendations in 2009 and 2010. The PC was monitoring, among other things, compliance with parenting time orders, the parents' attention to the children's school work, court-ordered counseling for one parent, safety concerns including driving the children without seatbelts and the possibility of firearms in the home, and the exchange of appropriate information between the parents (such as each parent's address and living situation).

Mother appealed several rulings of the court, including the court's adoption of some PC recommendations. In ruling on that issue, the Court of Appeals offered some direction on how Rule 74 is interpreted and how PCs should be properly used by the trial court. The Court may afford evidentiary value to the statements and findings of the Parenting Coordinator. The Court of Appeals noted that the PC is "expressly charged with gathering and reporting factual information to the court" and serves a quasi-judicial role in doing so. The PC's role is akin to that of a Special Master (or Family Law Master, as described by Rule 72, Arizona Rules of Family Law Procedure) and it would therefore make no sense that the court could not consider statements made by the PC.

This is not "blind deference" nor a delegation of the court's authority, however. No decision on a PC's report may become permanent over a party's objection without a prompt evidentiary hearing. (Emphasis added) In this particular court case, Mother had not filed an objection to any PC recommendation, and yet the court sua sponte held hearings on most of the same issues, thereby affording Mother the opportunity to respond/ object. The PC's recommendations in this case were designed to implement, clarify or modify parenting time, and were therefore consistent with the authority given in Rule 74.

The Court of Appeals also noted Form 11 to the Rules, which describes (mostly for the benefit of clients) the role of the Parenting Coordinator and how it differs from the judge's, attorney's or therapist's roles.

Even though a parent in this case had publicly posted, on the Internet, telephone messages or audio messages to the children that were deemed to be contrary to the children's best interests, neither the PC nor the Court could unconstitutionally restrain Mother's speech in advance. So the PC's recommendation that Mother be ordered not to make any audiotape, videotape or documentation about this case public in any fashion, and the Court's adoption of that recommendation, were unconstitutional.   Other remedies which are not unconstitutional were available to the Court: "If the Court reasonably found that Mother's publication of information about the legal proceedings was harmful to the children, the court could have premised an order reducing Mother's parenting time or imposing other sanctions . . ."

The Kelledy decision ends with a discussion of the fact that this trial judge entered an order permanently assigning this case to herself, in the event a judicial rotation took this judge out of the family court department. The Court of Appeals found that the trial judge had explicit authority to do this, subject to approval of the family court presiding judge, citing Maricopa County Local Rule of Practice 6.1(b).    "Judicial rotation is not a right belonging to a party."

*NOTE that because this is a Memorandum (unpublished) decision of the Court of Appeals, it cannot be regarded as precedent nor cited in court except for very limited purposes.

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