Subject: Comments on Case Manager Guidelines 2012
Date: Wed, 5 Sep 2012 13:50:54 -0500
Comments Below Submitted with permission of Liz Kates
Just 'another' Kansas Case Management - (non) Success Story, one family - 3 generations ruined and counting - *ker-ching*
PARENTING COORDINATION issues - pros and cons Parenting Coordination is a Bad Idea. Why:
Let's start with the problems with parenting coordination that every lawyer knows: inappropriate delegation of the judicial function, impediment to court access, and denial of due process. And so on...
The parenting coordinator concept encroaches on family liberty interests, bringing the government behind the closed doors of people's lives, injecting into the private realm a third party who is not in any way more capable than either of the parents are to make day-to-day decisions about their own families, values, and goals.
Parenting coordination is a made-up, make-work field that has been invented by bottom-feeding extraneous "professionals" who have literally reproduced like bacteria in the family court system.
There are no studies indicating that parenting coordinators make good decisions, improve the lives of children or parents, or improve child wellbeing. And, there is no reason to believe they would.
What qualifies a person to make personal family and childrearing decisions for other people -- what physician a child should go to, what school, other academic decisions, what extracurricular activities a child should participate in, family routines and scheduling decisions, seating decisions at the bar mitzvah or soccer game, and so forth? What qualifies a person unilaterally to interpret a court order, or "fill in the gaps" in the details of a legal document, a "parenting plan" (a violation of freedom of contract)? What qualifies a person to do "parenting coordination" to "help other persons implement" a legal contract (marital settlement agreement), as a supposed neutral?
What constitutes "success" at parenting coordination? Who knows. To the parenting coordinator, perhaps getting a nice fee.
To a judge, perhaps that he thinks he's eliminating work, clearing his docket, or just putting off disputes to another day, or another judge. If a judge thinks this is good for the court system, he's mistaken, because parenting coordination will make the congestion worse in the long run. While the parties are being denied immediate access to the judge, the presence of a parenting coordinator counterproductively requires that the door be left continuously open in the case, generating additional issues. The parenting coordinator's ideas introduced into the case, the minutiae that now has a forum, and the inevitable iatrogenic problems virtually guarantee that this is a short-sighted nonsolution to court congestion. Some of these issues may or may not be immediately apparent, and may even avoid detection in short-term surveys of pilot projects (assuming such studies otherwise are methodologically sound, which is unlikely.) The problems nevertheless are foreseeable. And relieving court congestion by hindering litigants' access to court (without regard to whether this is beneficial to families) is, in any event, of dubious validity as a rationale for the denial of due process.
So if relief of court congestion isn't a measure of success in parenting coordination practice, then what is? To one of the parties, that he or she now has an ally? That one of the parties is happy? Parenting coordination advocates of late have been busily setting about to create satisfaction surveys (not unlike the self-serving "evidence" that we saw upon the implementation of mandatory parenting class programs). But that a given litigant is satisfied would not be an indication of success at all unless we know with certainty that that party generally has the more meritable position. It might well be an indication of the complete breakdown of justice. Just as with the parenting class and court docket faux research, we also would have to discount these on studies based on lack of credibility because of $elf-$erving corruption, as well as unintended bias that is built in because of non-random subject selection, unwarranted optimism, self-reporting respondents' fears that negative comments could come back against them, and other methodological problems.
How about an objective measure of success, such as increased family well-being? How is this possible when people are burdened with tasks and negotiations and meddlesome reportings of the details of their days to third parties, when their time and money is consumed, pointlessly, when their privacy is intruded upon by the government like this, and when they are forced to kow-tow to the dictates of a court-appointed, decision-making autocrat in every area of their most intimate lives? It's not.
Are there better child-rearing outcomes? As compared with what? Defined how? And if not, what the heck are we supposedly doing here? Under any definition, increased child wellbeing has not been shown to flow from any of the ideas of applied therapeutic jurisprudence, i.e. trade promotion, in the family courts. (In fact, increased well-being in the population generally has not been demonstrated by any research from the burgeoning of psychological interventions and therapies over the decades.)
Just as with custody evaluators and guardians ad litem, and even to a large extent, the practice of mediation, there is no way to do any decent studies in this area. Benefit is not even apparent informally across demographic groups. Don't fall for self-serving industry articles spinning speculation. Research will never demonstrate any benefits from many of these ideas, including parenting coordination, because credible studies simply cannot be done. Even, inappropriately, after the fact. (If you don't understand why, contact me privately and I will direct you to material on social science versus science, experimental methodology, logic, and how to do critical reading and thinking and not be such a credulous patsy.)
The parenting coordination concept is an infection that causes all of the problems that custody evaluators and GALs bring into the family court system, and then some. Again, what qualifies a third-party stranger parenting coordinator to make daily family life decisions for other people? Nothing. And nothing ever will. Many of these kinds of decisions are made based on a free individual's own private life, relationships, desires, work needs, schedule, and personal values, beliefs and goals. The parenting coordinator makes decisions based on the parenting coordinator's own private agendas, preferences, motives, work needs, values, beliefs and goals -- and which party the parenting coordinator just happens to like better (which already is the unfortunate but real basis for most of custody evaluator and guardian ad litem opinings). The decision-making is based on, inter alia, intangible personality things as well tangibles such as who likes them and pays them timely and well.
Many, if not most, lawyer parenting coordinators as well as many mental health professionals, notwithstanding their ostensible "training", completely lack psychological insight. That's because it's not a function of academic training. Parenting coordination also is not "co-parenting therapy" (which rarely works anyway -- witness all the mental health professionals lobbying, writing, organizing, promoting, bucking for the authority to be mini-judges and dictators in a "parenting coordination" role.) Most mental health professionals also lack a clue regarding the repercussions in law of their ideas (a more obvious deficit, since they are probably not lawyers), yet these are people supposedly interpreting and "filling in the gaps" in legal documents!
The primary reason there is no valid "training" to be had is that there is no body of expertise, no foundation of knowledge, upon which to base any such training. It's... all just made up. Maybe they're smart? Well, not versus all possible litigants by a long shot, and no stranger will understand the daily life and routines, family members' needs and personalities, the interactions going on in someone else's household or the effects of their ideas in practice unless they actually spend considerable time in that household. Which, of course, they don't.
To go back to the court congestion problem that is moving the legislatures and courts to embrace the parenting coordination lobbyists' arguments: parenting coordination provides a forum for the arguing of minutiae that, in the absence of a parenting coordinator, the parties would have to work out, and learn to work out, on their own, or just let go. In other words, it addresses issues that wouldn't be there in the first place! It cannot prevent the litigation of issues that aren't within the purvue of the parenting coordinator to begin with, but still must be addressed by a judge. With regard to these other issues, however, when the parenting coordinator makes a bad decision, or oversteps authority, simply because this was the decision of a third party, that opens the door to the courthouse for matters that otherwise would not have had a forum, or would not have existed at all. The very presence of a parenting coordinator, like an uber-parent for the parents, itself creates opportunity for petty squabbling, encouraging it because, ironically, just like a misguided inept parent, the third party (getting paid for his time) is ready and available to intervene in all manner of disputes, thus retarding rather than encouraging growth and cooperation. Conflict is something that harms children.
Parenting coordination creates its own conflicts. And it not only encourages new conflicts, but creates a number of other foreseeable harms.
Parenting coordination is expensive, even at hourly rates less than the ordinary rates charged by these professionals when they do real work. This is so because the cost is for extra work, on top of the lawyers and litigation expenses the parties still have to maintain; the parenting coordination process actually does not eliminate any of this. Rather, it adds on additional professional expenses to handle minutiae that otherwise would not be creating expense. Ultimately, it's very expensive because any expense that does not yield something of equivalent value is a waste of money. Moreover, having a parenting coordinator at the ready permits one party to spend the other's funds by unilaterally contacting and choosing to bring issues before the parenting coordinator. Generally, both parties have to pay a portion of the parenting coordinator's fees; usually these are divided 50-50, and timely payment of the parenting coordinator's fees also becomes a matter of high concern for the parenting coordinator, adding that issue into the case.
Once appointed, the parenting coordinator has absolutely no incentive to work himself or herself out of a job. The potential amount of work is open-ended and in large part able to be self-generated by the parenting coordinator. The schedule is flexible and the royalties can go on indefinitely, until the parenting coordinator is removed (but not "for cause" because this would have to be based on criteria of success that largely is unable to be established). (How nice for the parenting coordinator.)
Frequent and typical make-work by the parenting coordinator includes forcing people to include the parenting coordinator in all communications and emails, provide the parenting coordinator in advance with parents' and children's schedules and activities, meet at the whim of the parenting coordinator, provide the parenting coordinator with school documents and medical records, and the like. Churn, churn, churn, duplicate, churn...
Parenting coordination intrudes on privacy. Among other things, parenting coordination permits the state via a state-appointed agent to demand information and details about people's lives that then can be brought back into court by the opposing party, effectively becoming ongoing compelled government discovery, contrary to the Fourth Amendment.
Individuals who choose to do this "work", to become parenting coordinators, are the equivalent of paid yentas and neighborhood meddlers. They tend to be individuals who cannot make a go of practicing the profession for which they were ostensibly educated and licensed -- the incompetent, the inexperienced, the nincompoops, the untalented, the lazy and/or the burnt-out. A good number have ulterior agendas, conscious and subconscious, either political agendas, or agendas of the psychologically issued psychic vampire or petty tyrant variety. Many parenting coordinators have axes to grind and strongly held personal beliefs about how other people's lives should work, what constitutes "fairness", fathers' or mothers' rights, parental values and roles, and so forth, as well as a need to re-visit, re-live and normalize their own family-of-origin issues.
A big draw for doing parenting coordination work is, of course, that while parenting coordination promoters tout the "lower cost", meaning that they are willing to settle for lower fees per hour for this work rather than their other work, the work itself is relatively brainless. And it's unregulated and practicably unable to be regulated. There is no efficient or effective oversight. Being unregulated means that there is no recourse against the parenting coordinator for malfeasance or malpractice. For good measure, as added insurance against malfeasance, many, if not most parenting coordinators require the parties to sign various consents and waivers of liability. Some statutes and procedural rules have formalized the lack of accountability as well. (How nice for the parenting coordinator.)
If you've heard argument otherwise, that the field was chosen in order to "help" (dictate to other) people, or because they were "frustrated" as lawyers or psychologists or mediators in not being able to "help" (dictate to other) people, then given the relatively lower (albeit no-overhead) hourly fees charged for parenting coordination, ask how much unpaid voluntary work the person has done. Query why this ostensible advice-giving do-gooderism wasn't just done through their church, or a community charity agency, and offered to all-comers in their avocational spare time on a no-obligation basis, while in their regular working time, they just continue to practice the profession for which they actually were trained and licensed. That's how good samaritans and persons with kindly, charitable intent usually "help" when that's the actual motive and they already have a real profession to practice in the family court field.
The nature of the function as designed enables parenting coordinators to churn money by insisting on all manner of crap that involves them, under circumstances in which their decisions cannot be second-guessed, even by a judge. The parenting coordinator's "work" cannot conveniently be reviewed by a judge because the "proceedings" with a parenting coordinator are informal, undocumented, and outside of the court and due process. In many jurisdictions, the parenting coordination practice essentially is professed to be "confidential except when it's not." (More on this, below.) Also, there is no criteria of "success", no standard of satisfactory practice. All fuzzy. If and to the extent acts or omissions of the parenting coordinator are contested, no matter what occurs, the parenting coordinator simply can "remember" conversations and events differently from the way they really happened. If contested, the parenting coordinator also can -- and will -- employ the ready CYA alibis of "high conflict custody case" and one parent's ostensible irrationality or prevarication.
Many of the lawyers, mental health professionals, and erstwhile mediators and guardians ad litem who want to do parenting coordination have no actual experience themselves as parents, let alone as caregiving parents, let alone as single parents -- or with blended family issues, or with children with particular issues, or in "shared parenting" or divorced situations. Some do, and as noted, more often than not, they are normalizing their own issues. These advice-givers do not necessarily hail themselves from successful well-functioning families. Parenting coordinators bring to their job their personal opinions and values and speculations founded on their unknown personal backgrounds, including some of the most dysfunctional (and undisclosed) personal familial histories, and implement their personal and political agendas. They are the antithesis of "wise persons", who generally are not found among neighborhood gossips or those who relish involving themselves in the mundane details of other people's lives.
Time spent with the parenting coordinator, where not catering to the dysfunctional weak or abusive litigants who are hoping for support or a sounding board is tedious and time-consuming for the parents. The same timewasting, of course, represents a ca-ching in the bank account of the parenting coordinator, which encourages plodding and more time-wasting meetings and talkings. (Meanwhile, the litigant fantasy of having a parenting coordinator "on the case" as an ally will end quickly when the selected parenting coordinator in this crapshoot aligns with the other parent.)
Parents are placed at the whim of all kinds of arbitrary demands made by the parenting coordinator, including for the payment for their time, which is largely in the control of the parenting coordinator and possibly the other party. (This applies, to a great extent, as well, to various court-appointed therapists and GALs). Given the presence of the parenting coordinator, and the payment incentive, every decision, no matter how petty or absurd, is open for endless discussion and rumination. In addition to being time-consuming, this is a delight for stalker-harasser abusive types, as well as those who just won't let go of the other party.
The parenting coordinator can think up all kinds of activities to do and with which to require the parents to comply: pseudo-therapy (unregulated of course by the licensing boards because it's "not really" therapy, and it's "not really" law); "communications counseling"; "coaching"; reading of materials; various "educational" homework assignments; meetings with one or the other of the parties, meetings together, meetings with various combinations of others; demands for disclosure, frequently in writing, of private thoughts, emotions, and information; consultations and strategy sessions with the children's guardian ad litem and parents' court-ordered or parenting coordinator-ordered therapists; meetings with the children's physicians and teachers; meetings with anyone at all; ordering of a parent into supervised visitation or therapeutic visitation; recommending to the court therapies of all kinds with yet more of the helping professionals -- almost anything. Confidentiality? That's a pipe dream. It's only "confidential" when that suits the parenting coordinator, and there's a court issue. But under the pretext of having to gather information, the PC has authority to yammer to pretty much everyone in the community. And if a parent doesn't comply, there are sanctions, imposed both by the parenting coordinator and the court for "noncompliance".
Does this not strike you as an outrageous and unconstitutional denigration of the First Amendment freedom of speech and association, Fourth and Fifth Amendment privacy rights, and the fundamental parental rights of perfectly fit parents, as to whom the state would be unable to file a dependency action and remove their children to foster care? Free, competent individuals are entitled voluntarily to subject themselves to private judges and arbitrators, of course. But why would any informed and reasonably intelligent individual who is not under duress and coercion, ever agree to living with one who cannot be appealed, discharged, or limited to issues brought before him? Answer: they wouldn't. Either these litigants were not properly informed (in any number of ways), or they indeed were under inappropriate coercion of some kind that rendered their consent essentially involuntary.
How-to techniques for would-be parenting coordinators in this newly invented "profession" consist of almost anything the parenting coordinator might dream up, sprinkled with suggestions and teachings borrowed from law, psychology, mediation and other practices, as well as fantasies from other imaginative self-styled professional parenting coordinators in the recent explosion of manuals, books and trade-promotion "trainings". (Until enough fools sign on for this cock-'n-bull to fill a workweek, for the ambitious, there's still money that can be earned professing to be a mavin).
Parenting coordination "training" materials comprise mostly stuff plucked from the asses of their inventors.
Doubt me? Read some of it. Parenting coordination methodology includes such things as ordering people how to talk with each other ("use my template"), ordering parents in what method they may or must talk with each other ("email only, and you must copy me"), and even uttering orders to parents regarding when or whether they must or may not meet and/or communicate with each other, with the parenting coordinator, with the court or their own lawyer, and with other people such as extended family, all in astonishing violation of fundamental constitutional rights. To facilitate all of this, parenting coordination orders, agreements, "voluntary" consents, "understandings" and intake forms generally require the parents to sign away all manner of these constitutional rights -- in what is, essentially, a busybody's lucrative wetdream.
As previously noted, having a parenting coordinator on a case keeps the case continuously open and invites it to explode into endless issue-making, rather than being finally resolved, and in doing so, actually creates more, not fewer, problems for both the litigants and the courts. Sometimes a case does appear to resolve, but all too often that is only because the financially or emotionally weaker party, or the party unfavored by the parenting coordinator, just gives up in defeat, beaten away by the constant undercurrent threat of litigation, the harassment, and the need to avoid continuing costs.
(If judges' goals here are to get people to just shut up and go away, we could eliminate all of the docket problems in the civil courts and achieve equally fine results just by closing the courts altogether.)
Parenting coordination, the latest of the therapeutic jurisprudential ideas, is dangerous, and not merely because of the distortion it makes in the judicial system and of due process. In recent years there has been a burgeoning of child abuse and deaths stemming from child custody disputes in which abusive individuals get custody and visitation rights, correlating with the rise of joint custody theory and the intrusion into the family courts of therapeutic jurisprudence. Unqualified strangers can and will make bad decisions that simply cannot timely be brought to court, cannot effectively be reviewed by the court, or which are prohibitively expensive to bring to court. Parenting coordinators have missed domestic violence. Conversely, in one Florida appellate case, a parenting coordinator wrongly claimed that domestic violence had occured when it hadn't, prompting an emergency change of custody. Parenting coordinators have assumed facts that are not true. They have perceived emergencies or situations incorrectly. They have mischaracterized events and made egregious judgmental mistakes. They have lied outright. See the cases. The concept is dangerous because parenting coordinators are not and practicably cannot be subject to any effective oversight. Each case is different, there are no studies, there is no body of knowlege, there is no methodology, there are no licenses, there are and can be no effective regulations, there are no actual practice parameters other than aspirational sound-goods, such as "be neutral", there are no definitions of a successful outcome, and it's all vague nonsense or worse.
Depending on the vagaries of the practice from time to time in this or that jurisdiction, parenting coordinators effectively have license to wield heavy authority and extremely biased power, opining back to and influencing judges, bringing issues into the public domain that do not belong there and which were not brought into the case by either party, siding with one party unfairly (even developing personal relationships with one of the parties), and recommending or just ordering the parents to hire the parenting coordinator's own cronies for therapies and guardianships and evaluations. It's a recipe for more corruption and an insult to the rule of law.
Parenting coordinators can -- and do -- violate the terms of parties' contractual agreements as well as the law. Lobbyists for statutory implementation of this role have argued, speciously, that oversight does indeed exist because, well, "if the parties are not happy, they can always go back to court". But real life doesn't work that way, and it especially does not work that way under these circumstances. "If you don't like it, then take it to court" is a dare that can be thrown out cavalierly, because the parenting coordinator role permits these court appointees to hold over the head of objecting parties the power -- baselessly presumed to be executed in good faith -- to obtain the ear of the judge first, and to poison the well. They also hold more credibility before before the judge than those lunatic, bitter, embattled, unreasonable, "high-conflict", personality-disordered parents. They can and do function as shadow witnesses ex parte, to provide the judge (directly as well as indirectly through guardians ad litem, other witnesses, and even via support to one of the parties) with information, evidence and innuendo. Their inexpert opinions can and frequently will label one of the parties as the recalcitrant, the wrongdoer, the deadbeat, the crazy, or the "uncooperative" one.
So "take it to the judge" does not work, particularly post-decree, when a party may be short of time or funds, or may no longer even have a lawyer. And it does not work because in many courts, days or weeks, or months may go by before a party can get a hearing. And it does not work because an objecting party has to overcome not only the parenting coordinator but also the opposing party -- being out-voted from the git-go, two against one, a problem also inherent in the family court guardian ad litem role, but potentially even worse in this instance because the parenting coordinator solicits support from the guardian ad litem, the appointed therapists, and the rest of the courthouse cronies. And it does not work because "going back to court" means risking the irritation of the judge who appointed the parenting coordinator in the first place precisely because he didn't want to hear about it. There is no oversight.
Difficult to remove in any event once appointed, the parenting coordinator is even more difficult to remove when he or she is biased (and that's a better than even bet, given the nature of ongoing informal relationships with people, especially where there is money at stake, and especially given who is drawn to this line of work). Bias should be one of the grounds that immediately would mandate removal of a parenting coordinator, but it also means that the parenting coordinator will be vested in preserving his own aura of competence and neutrality (as well as current and future income stream), all the while being validated by the party with whom he is aligned. Moreover, how does a party prove "bias" when the ubiquitous explanation is that the "disgruntled" party who didn't get his or her way always makes this claim of "bias".
There is no way to tell in advance who might be a "good" or "helpful" parenting coordinator. Families differ, circumstances differ, and personalities differ. To parties disputing this, or buying into a sell-job from some mental health professional, mediator, or burnt-out lawyer, I would ask: how great were you in deciding in advance who to marry, or with whom to have a child. What makes you believe that the third party who wants this easy work will be a second voice on "your" side?
In the inane insistence that "both" parents "participate" in making decisions regarding the child, in order to avoid stalemate, parenting coordination is the tool for unworkable custody and timeshare arrangements, notably joint custody, which removes from BOTH parents the right to function with authority and automony. A big flaw in the concept of joint custody is that, instead of having at least one functional parent, the joint custody child now has two ineffective half-parents who may not function except in tandem, and ironically they are typically the kind of parents least able to pull this off. With a parenting coordinator or guardian ad litem added into the mix, the child does not even have that, because instead of two half-parents sharing an undivided fundamental parental liberty interest, the child has half-parents who report to a parenting boss. It's involvement by the state in the complete absence of any actual threat to the child that ordinarily would justify state intrusion like this.
One should counter: if a third party stranger, based upon no established field of expertise whatsoever, is supposedly qualified to make and facilitate decisions impacting other people's family lives, something that is not even usually encouraged in clinical therapy, then why is not the better solution just to assign that authority to one of the parents? The spheres of decision-making authority can be allocated too. It would be easier, cheaper, quicker, and done. And at least then the child would have one real and functional authoritative parent, something that IS demonstrably evidenced in the research to be necessary for child security and well-being.
While the rhetoric is rampant that parents are less likely or unlikely to consider their children before themselves in their decision-making when they are embattled in divorce and post-divorce issues, no research actually substantiates this concocted rationale.
The rationale first was invented by psych trade groups to lobby state legislatures for guardians ad litem in family law cases, and later was used to justify in part the appointment of custody evaluators. It's become yet another family court system truism without a shred of foundation. The anecdotal claims (if you even get that much, get any anecdotes) of individuals who have a political or profit motive, peddling their services to the market, are just not credible, especially as to historic primary caregivers. No one is as interested in or vested in their own children's happiness and wellbeing as the child's own parent, or, if you must, as between two parents, than the one who already has shown higher attachment and commitment.
Parenting coordination stands as proof positive that something is very, very wrong with the substantive direction of child custody law in recent years. As more and more mental health professionals stream into the court system, get involved in bar associations, and encourage lawyers to mix it up in "multidisciplinary" organizations, the substantive laws are getting worse. The problems consequently are getting worse. The solutions for the iatrogenic problems caused by these therapeutic interventions are more and more of them. That's dysfunctional. That cure is "hair of the dog that bit you" and goodgod, the "science" of the psychological experts is about as valid. There's a better solution. You should know what that is by now. Just Say No.
Comments Submitted with permission of Liz Kates
Just 'another' Kansas Case Management - (non) Success Story, one family - 3 generations ruined and counting - *ker-ching*