Fall 2014 Newsletter: The SJC and Bower v. Bournay-Bower

By Robin Lynch Nardone

On September 15, 2014 the Supreme Judicial Court decided a case of first impression on the issue of whether a court has the authority to appoint a Parenting Coordinator over the objection of one of the parties.  While holding that the Probate and Family Court judge exceeded her judicial authority in appointing a PC with binding decision-making authority over the objection of Ms. Bournay-Bower,  the SJC concluded that the court does have the inherent authority to appoint a PC in appropriate circumstances in order to conserve limited judicial resources.   Precisely what circumstances are appropriate for the appointment of a PC is not explicitly clear.  The SJC held that the authority vested in the PC in the Bower matter was an unlawful delegation of judicial authority – meaning that a judge cannot give a PC the power to make decisions that should be made by a judge.  Does this mean that only a PC with no authority can be appointed? In which case, will such an appointment really lessen the burden on the Court in truly high-conflict cases?

Massachusetts presently has no rule or statute setting forth the duties, required qualifications, or scope of authority of a PC.  The SJC encouraged the Probate and Family Court to enact a rule regarding the appointment of PC’s to ensure procedural and substantive safeguards are in place in any appointment, including:

  • Selection of PC (list of approved providers should be maintained and appointments distributed fairly therefrom to avoid favoritism).
  • Define the points in proceedings when parties may be referred to a PC.
  • Define the nature and scope of the authority that may be granted to a PC so as to avoid an unlawful delegation of judicial authority.
  • Resolve issues related to the apportionment and payment of PC fees .  On this point, the SJC noted that a judge may not require parties to use a PC if the order would require one or both parents to pay for the PC’s services without his/her consent.  This begs the question – does an objection to paying for a PC give a party an automatic out from an appointment of a PC?
  • Training, licensing, or monitoring of PCs.
  • Whether and how parents may file complaints or seek removal of PCs.
  • Confidentiality policies.
  • Impartiality.
  • Case screening procedures.

The decision in Bower v. Bournay-Bower still allows for parties to agree to the appointment of a PC.  The SJC wrote, “nothing in this decision should be construed to limit the ability of parties to agree to use the services of a parent coordinator or for a judge to incorporate that agreement into a judgment of divorce or to otherwise enforce the agreement using contract principles.”  Parties who have already agreed within their Temporary Order or Separation Agreement to utilize a PC will be bound by their agreement.  What will happen to provisions in Separation Agreements entered into prior to the decision in Bower v. Bournay-Bower  in which the parties agreed to give the PC binding decision making authority?  Is that an improper delegation of power that one party can now successfully challenge? 

While the SJC has given some guidance, what the decision in Bower v. Bournay-Bower really does is suggest to the Probate and Family Court, or better yet, the legislature, that some rules and guidelines are necessary.  Until those rules are put in place, we are likely to continue to see disputes surrounding the appointment of PCs.

Robin Lynch Nardone specializes in family law litigation and mediation. In her litigation practice she specializes in handling high net worth divorce, high conflict custody / parenting disputes, same-sex marriage and divorce issues, paternity actions, removal cases, child support and alimony actions, as well as adoption. Ms. Lynch-Nardone handles cases in Essex, Middlesex, Norfolk, Suffolk, Plymouth and Worcester counties.