Is Parenting Authority a Usurpation of Judicial Authority? Harmonizing Authority for, Benefits of, and Limitations on this Legal-Psychological Hybrid

A assists high-conflict parents in resolving disputes that arise in the parents' efforts to jointly parent their children after a divorce. The Parenting Coordinator simultaneously educates the parents to minimize the degree and frequency of future conflict. While Parenting Coordination is not mediation or arbitration, it is also not counseling. Instead, Parenting Coordination is a legal-psychological hybrid. A trial court's delegation to a parenting coordinator to determine a fit parent's access to her child is arguably an improper delegation of judicial authority. While thirteen states have comprehensive schemes setting out their Parenting Coordination programs, other states are utilizing Parenting Coordination without statutory or rule-based authorization. Appointments without statutory or rule-based authority are particularly vulnerable to challenge. 'Assistant Professor of Law, Director of Legal Writing Program, Faulkner University, Jones School of Law. The author would like to thank Faulkner University, Jones School of Law, for providing a grant to support this project; Dean Brenda See for her mentorship and encouragement; Assistant Professors Jocelyn Hedlund-Limmer and Eric P. Voigt for their valuable feedback on this Article; Stephanie Stephens for her research support; and Dr. Karl Kirkland for generously sharing his work on this issue. 1 Montiel: Is Parenting Authority a Usurpation of Judicial Authority? Harmon Published by Trace: Tennessee Research and Creative Exchange, 2014 7.2 Tennessee Journal of Law and Policy 365 Whether a Parenting Coordinator's appointment is an improper delegation of judicial authority depends on the authority for the appointment in the given jurisdiction and the terms governing the specific appointment. This Article analyzes the use of Parenting Coordination in jurisdictions that appoint Parenting Coordinators both with and without specific authority. From that analysis, this Article offers a paradigm for constructing an appointment that does not constitute an improper delegation of judicial authority. The paradigm will be useful for judges and practitioners attempting to utilize Parenting Coordination without specific statutory or rule-based authority. It will also be useful for courts and legislators considering adoption of a Parenting Coordinator rule or statute. The Article proposes that, where a trial court has some inherent authority to ensure the best interest of the children, with or without specific statute or rule-based authority, Parenting Coordination can be sustained. Combined with the substantial benefits of a qualified Parenting Coordinator, imposing appropriate limitations on the Parenting Coordinator's role can incrementally diminish the argument that the appointment is an improper delegation of judicial authority. Achieving an appropriate balance of benefits and limitations, in light of the basis for appointment authority, achieves a sustainable appointment.