Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.


The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.


The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.


In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.


As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.


An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.


Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,


Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.


Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)


It was Monday morning in Media, Delaware County, Pennsylvania. The daily “list” of special relief petitions had almost thirty matters on it for disposition. The good news was that ten of them had either been withdrawn or “continued” to a later date. The bad news was that an unscheduled “emergency” would mean that the judge would be delayed by an hour in ascending the bench to hear the twenty matters left for disposition.

My matter had evolved into a dispute over $60,000 in interim distributions. But in Courts, matters do not proceed in order of the amount in controversy.  Often there is no rhyme or reason in what order matters are heard.  Judges prefer to dispose of any settled matters first because it lessens the list.  Some will take the cases in the order on the list.  Others will ask how long the parties will take to present their cases and proceed first with those matters requiring the least amount of time.

Sit in any courtroom in Pennsylvania and you will obtain an education.  You will see lawyers and their clients fight over matters of great magnitude.  Others will grapple over the ridiculous and then move on to the sublime.

In court today and ahead of my matter were two lawyers whom I respect. Alas, the fight of the day did not warrant their level of skill. The dispute?  How an affluent couple would divide their summer cottage between them for the season ahead. By the time the Court reached them on the list each client had an investment of $ 1,500 in legal fees.

Great news for the lawyers, right? Really, no. All but the greediest of attorneys would have happily avoided this morning of watching and waiting for their fifteen minutes of fame.  This is what lawyers term a “power fight”. It rarely has to do with the merits of the summer schedule.  Take each party aside and ask them why they are there and the answer is: “He/She has pushed me around enough.

I want my six weeks this summer when I want it.  I have been dictated to enough.”

We have previously written that there are times when “principle” warrants a courtroom battle.  This is not one of them. There is very little principle attached to whether husband or wife gets the last week of August or the fourth of July. Certainly, even wealthy people will not be happy to see their invoice for May legal services include $2,000 for the battle for Independence Day. One other thing.  Rarely does any litigant win a clear victory in these battles.  Compromise is what judges do except where they perceive huge injustice.

So what needed to happen? As we stood in the back of the Court waiting for the proceedings to begin, the comment was made that almost any lawyer in the Courtroom could have resolved the controversy fairly in 10-15 minutes after hearing both sides out. The parties did not need a jurist to decide this matter.  They just needed someone neutral who would hear both sides out and make the decision. Instead, the parties sat for three hours waiting for the judge to reach them.  When he did, the job was done and fairly.  But lawyers sat and client’s paid for hours of waiting.

We have previously suggested that in a world of expensive legal services clients should pick their legal fights carefully.  If the dispute does not require specialized skill but only a brief argument and a prompt disposition ask your lawyer whether you and your spouse can appoint someone to dispose of it quickly. Chances are you will pay that person.  But that will get you a result and your neutral will put you to the head of the line.

Having been through a spate of trials and hearings over the past few months, it has come to our attention that many clients have little familiarity with how courtrooms actually work.  Ironically lawyers assume that clients know how trials work.  Litigation is what we do every day.  Clients also tend to assume they know more than they actually do.  Their experience with trial comes from television. Unfortunately, they miss a crucial distinction. Judge Judy and Judge Joe and all the other television judges are there to provide amusement. Real court is much more formal and is directed toward exploring all the relevant facts in a question and answer format.

In Pennsylvania, real court can come in the form of proceedings before a master or before a judge.  The difference is not terribly different if you are a litigant.  Masters are lawyers appointed by elected judges to take evidence and publish recommendations concerning support and property issues.  We are commonly asked whether these folks are “real judges.”  Technically, they are not because they have not been elected to their positions. But, they have their jobs because judges respect their viewpoints. Even though a master’s ruling can be appealed to the judge, many judges rely heavily on what their masters have recommended.

Whether trial is before a judge or a master, the procedure is usually the same. The party who filed first (the plaintiff) puts on his or her evidence first. Evidence usually comes in two forms.  Testimony and documents corroborating testimony. As the plaintiff goes first in starting the trial, the plaintiff has the right to choose what witnesses appear in what order. That can even include situations where the plaintiff starts the case by calling the defendant as a witness. It can be very unsettling to be told by your attorney that your spouse will proceed first only to find out one minute later that your spouse has elected to make you the first witness to testify.

Trial is like a baseball game.  Let’s assume that you are the plaintiff.  Your team is up to bat first.  Your testimony is conducted by your lawyer, It’s the lawyer’s job to cover with you every salient fact that needs to be put into evidence. Once your examination is completed, you cannot bank on getting another chance to tell your side of the story to the court. With rare exception, the excuse that you left the documents at home or at the bank or at Aunt Sadie’s does not work.  The court wants the documents when the witness it testifying.

Once you finish telling your story under the direction of your lawyer, your spouse’s lawyer gets to ask you questions in what is called “cross examination.” During what lawyers simply term “cross”, that lawyer can ask you questions that are leading. “Isn’t is true that…..” “You never told your spouse that you borrowed from your retirement account, did you?” The point of cross examination is to allow the opposing side to test your credibility or to show you documents or other evidence that may appear to contradict what you are trying to say.  It is often pointed and unpleasant which is how it is intended to be.  Every witness must be prepared to tell his or her story and to have that story challenged.

Once the other attorney has had his way with you, your attorney gets a second shot at asking you questions. That comes with a major limitation.  He or she must limit questions to subjects on which you were cross examined.  This “re-direct” examination is not an invitation to repeat the testimony you already gave.  It is to give your attorney a chance to clear up things where cross examination has created misunderstanding or ambiguity.  Take for example the question: “Did you ever discuss taking money from the retirement account with your spouse?”  You answered that you had not.  The fact is that you had not discussed the subject avoided the fact you had left the retirement withdrawal form on the table for your spouse to sign and that she had signed it. This testimony clears up the subject so the court has all the facts.  So your lawyer gets to ask you questions about this subject because it is ground not previously covered.

The other side can then “re-cross” you.  Again the limit is what you spoke about in re-direct.  With each stage the scope of the questioning is limited to the prior set of questions. Once the sponge called the witness has been thoroughly wrung out, it’s time for a new witness. The same rules apply for all witnesses.  It can be very annoying to be a party. Direct examination of a key witness (usually one of the two spouses) can go on for hours or even days.  That means you have to wait and wait for your lawyer to get a chance to cross examine your lying spouse.  It will be even longer until you get the chance to set the record straight with your own testimony.  Sorry. The rules are that the plaintiff gets to present his or her entire case before the defendant gets a chance to go forward. Some see that as a big disadvantage. All of that testimony goes unrebutted except for cross examination until it comes time for the defendant to present. But, remember, much as one party see advantage in being the first to present, the other party may see it as an advantage to be the last to present.

The defendant presents his or her case in the same way as the plaintiff. Direct examination of the witnesses followed by cross examination and then re-direct and re-cross.  Until the defense sponge is wrung dry just as the plaintiff’s was.

Is it then over?  Not quite. Suppose subjects come up in the defendant’s case that the plaintiff never discussed when he presented his case. The plaintiff is given a chance to rebut what the defendant presents.  Again, this is not a chance to rehash testimony already given. Rebuttal is limited to subjects that have not been fully explored.

Equitable distribution proceedings can be unwieldy because people own lots of assets and many of them (stock options, timeshares, nonqualified retirement plans etc) are complicated. All too often clients don’t really understand these assets as well as they should and that can make proceedings both long and frustrating. We have had witnesses with advanced education degrees confounded when asked what is reflected on their paystubs.  The key is to understand the process but, perhaps just as important, to understand the assets and the income that are unique to your case.

In these proceedings both sides are supposed to share their exhibits with the other side in advance of the trial.  It is usually productive to sit down with your attorneys in the days before complex hearings to review what you will have to tell the court and to try to anticipate how the other side will respond.