It’s fairly common for a parenting plan or parenting time order to include a clause like this: “If the parties are unable to reach an agreement regarding any change to this parenting agreement, they will request mediation either through the court or via a private mediator of their choice prior to bringing any court action.” The important words are “prior to bringing any court action.” At least in Arizona, petitions to modify a Parenting Plan are frequently denied a hearing by the court until the parties have fulfilled the mediation requirement.
The Supreme Court of Maine has disfavored this practice. Stating that the mediation requirement “subordinate the parties’ rights to seek judicial recourse” and “materially frustrates” their right of access to the courts, Maine’s highest court has vacated that provision. Karamanoglu v. Gourlaouen (2016)
The mediation clause has its purpose and the Maine court recognized that it was a well-intentioned effort to make the parties attempt to resolve their parenting disputes through settlement. But because the clause as stated denied the parties the right of access to the court until mediation is attempted, it went too far.
This court also vacated a provision in the parties parenting plan which delegated medical decision making to the child’s primary care provider in the event the parents couldn’t agree on a decision. This delegation of authority to the child’s doctor was done by court order and not by agreement of the parents. This type of provision is not common but is sometimes resorted to if parents with joint legal decision-making (custody) can’t agree on basic medical or other services for a child, because setting some type of tie-breaking system is usually considered better than having the child go without treatment. But in this case in Maine, because both parents had been found to be “fit” by the court, the delegation of decision-making to a third party could not be supported.
Taking this analysis to its logical conclusion, if two parents are found to be “fit” to make decisions concerning the child, but decisions are then not being made because the parents can’t agree, it would appear that a trial court will then have to delegate final decision-making to one parent or the other, or the child could go without needed services. So in cases where joint legal decision-making has been awarded, if one parent feels the child is going without something necessary as the result of the parents’ disagreements, the solution is filing a petition to modify legal decision-making so that decisions can be made.
Arizona of course has not yet thrown out mandatory mediation clauses, nor any provisions that a third party should make decisions about a child if the parents can’t. Arizona’s modification of Rule 74 regarding parenting coordinator authority (modified in 2016) in fact delegates several areas of decision-making to a parenting coordinator if the parents cannot agree. But this delegation of authority is made only upon stipulation of the parents.