Archives: Process

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.)

 

A recent article by Harvard physician Atul Gawande in the New Yorker discussed how poorly our society does in addressing end of life decisions where a person is afflicted with a diagnosis of terminal disease.  These are questions we don’t like to deal with.  And as the article poignantly illustrates, neither the patient nor the family wants to be candid about what is really going on. The result is often the employment of heroic measures that might possibly produce a favorable outcome but which are certain to make the patient’s life miserable. The author proposes that in these cases, patients are afraid to tell family members that further experimental treatment is not what they want out of fear that the family members will judge them a “quitter.”  Family members fear discussion that suggests abandoning further treatment will be construed by the patient as a signal that the family is tired of dealing with the illness.

Dr. Gawande has noted that as recently as thirty years ago, many physicians would not tell their patient how grave an illness was. This prompted us to consider whether attorneys and their clients are guilty of the same lack of candor when managing litigation.

Litigation of any kind is an evolutionary process where facts are collected and ultimately presented to a judge or jury for evaluation and decision.  In a family law context, clients tell us their vision of the world.  From that start, we try to collect evidence that supports the theory of the case.  Many times, the collection of evidence may change the strength of the client’s theory.  In some situations what sounded like a strong case on interview fails because there is little to no evidence to support it.  In other instances, as attorneys we see the evidence as supportive of our theory of the case but the trier of fact (usually the judge or hearing officer) telegraphs that he or she does not see the case as having the same merit we do as advocates.

In either case, either unsupported facts or an unpersuaded judge, there needs to be a frank reassessment of the litigation between attorney and client.  This is a difficult process because clients often don’t see weaknesses in their cases and when confronted with them, there is a tendency on the part of clients to suggest that the lawyers is losing faith or misled the client to begin with.  There are times when it makes sense to “tough out” the litigation process and go to trial and or appeal from an adverse ruling.  This requires frank discussion throughout the decision making progress.  Without it, the risk is high that a bad decision will be made and that the next dollars invested in the litigation will be poor investments.

As we have written before, every litigated matter involves an investment.  As with any other investment, it comes with cost and it comes with risk.  No case is a certain winner.  As you proceed with any such investment clients need to ask the questions that need to be asked.  Is the case growing stronger or weaker premised upon the evolution of the facts and the rulings in the case before trial?  Do not fall prey to the kind of blindness to which Dr Gawande alludes where you the client are not being realistic about the range of outcomes and their relative likelihood. Litigation is not life threatening in ways that disease can be. But it is no fun to buy lots of it when the outcome will only drain your pocket and leave you unhappy.  That’s a question clients need to ask if the case takes a bad turn.  Our reaction is often to just throw more at it and threaten to do more and not less. This is the American way. It’s what made Stephen Decatur and Davy Crockett folk heroes.  But, it is worth noting that when all was said and done the outcome for Crockett is not what he intended.