For more than six years, the strained divorce of Miami Heat superstar Dwyane Wade from Siohvaughn Funches-Wade has splashed across the pages of major media outlets. Finalized in 2010, three years after Dwayne’s initial filing, Dwyane received sole custody of the couple’s two sons, Zion and Zaire, in 2011, notwithstanding Siohvaughn’s repeated claims that Dwyane “often hit me, lock[ed] me in rooms and … threaten[ed] to take my sons from me.” Dwyane vigorously disputed the claims of violence and questioned Siohvaughn’s mental health and capacity to parent.
Even after the divorce was finalized, Siohvaughn continued to appeal her sizeable financial settlement and claim that Dwyane failed to pony up the promised funds. On two separate occasions, strife over visitation led to Siohvaughn’s arrest—once for child abduction and once for failing to appear in court. Visitation issues also led to judicial orders specifically directing Dwyane to allow Siohvaughn to visit.
This quick snapshot reveals a couple who likely can agree on very little, a relationship plagued with turmoil, mistrust, and perhaps violence. Going forward, they have the slimmest of chances of “co-parenting” Zion and Zaire together. No surprise, then, that the Illinois court that presided over part of this tumultuous and protracted legal battle took an obvious, if still relatively novel, step to keep Dwyane and Siohvaughn’s every parenting disagreement out of the courts: it appointed a parent coordinator.
Parent coordinators are a relatively new breed of professional designed to assist the court. Too often, children are caught in the crossfire between high-conflict parents. Judges like parent coordinators because the coordinator is “not the ally of either parent”; instead, parent coordinators are “a neutral third party” who “can be an effective educator, mediator, and counselor to the entire family.” Judges say “once the parenting coordinator becomes involved, the parties tend to work out the differences that seem insurmountable when they appeared in court.”
Typically, parent coordinators:
- Meet with parents and their counsel;
- Review psychological, school, and other family records;
- Consult relevant witnesses like psychologists;
- Help parents create visitation schedules and police compliance with them;
- Mediate visitation or parenting disputes, which may include teaching the couple basic parenting and communication skills;
- Make recommendations regarding visitation to the court;
- Share with the court and parents the children’s perspective; and
- Counsel and educate children when a child refuses to visit the other parent.
Parent coordinators are sometimes involved in the initial divorce proceeding, but more often they run interference between the parents after the dust settles.
In recent years, professionals assisting with custody battles have proliferated. Early on, judges turned to custody evaluators for insights into the parents’ clashing contentions over what custody arrangement will best serve the children’s welfare. Custody evaluators interview children and parents, ultimately reporting their findings (and in some places, recommendations) to the court. Later, judges also began appointing a guardian ad litem, typically an attorney, who is specifically tasked with advocating for the child’s best interests. In the Wade/Funches-Wade divorce, custody evaluators, a guardian ad litem, and a parent coordinator all played a role.
With so many professionals involved, things can get expensive quickly, especially at $400 per hour, the rate reportedly commanded by the parent coordinator assigned to Dwyane and Siohvaughn. Further, as layer after layer is added between the parents and the presiding judge who may eventually hear the case (although, according to attorney Marlene Browne, “only five percent of divorce cases are settled in court, leaving 95 percent to be settled by other methods”), the risk multiplies that one or more professionals will exert an undue influence on the outcome. This makes it crucial to ensure that the professionals relied upon by judges act as impartially as the judges themselves.
That does not always happen. In the Wade/Funches-Wade divorce, the parent coordinator, Howard Rosenberg, resigned amidst allegations from lawyers for both parties that he “personally communicated with the judge, bypassing them, and even attempted to change the children’s visitation schedule behind their backs.” Rosenberg counters that he quit because of “his inability to work ‘effectively’ with the lawyers involved in the case.”
On October 23, 2013, a Florida Court of Appeals took the extraordinary step of disqualifying the trial court judge who heard the Emergency Motion to Suspend Timesharing at which the parent coordinator testified. The appeals court was especially concerned that the trial judge permitted Rosenberg to testify about his recommendations about visitation without allowing Funches-Wade’s attorney to cross-examine him. The trial court judge had also ordered Funches-Wade to undergo a psychological evaluation despite her protests. In the appeals court’s view, these errors “denied the Mother a most basic right of due process and reasonably caused her to fear that she would not receive a fair and impartial hearing.” As a result, the appeals court “remand[ed] … for reassignment to a successor judge.”
It’s crucial for the professionals relied upon by judges to act as impartially as the judges themselves. That doesn’t always happen.
The Wade/Funches-Wade divorce is not the first case to raise questions about the impartiality—and dramatic influence—of parent coordinators. In 2003, a Florida court of appeals in Hastings v Rigsbee reversed a trial judge’s decisions predicated on advice by a parent coordinator, saying that while “a parenting coordinator can appropriately assist a trial court in carrying out the court’s responsibilities, … it is never appropriate for a parenting coordinator to act as a fact-finder or otherwise perform judicial functions.” In that case, the parent coordinator issued recommendations effectively removing custody of the child from the mother after the relationship between her and the parenting coordinator became strained. The parent coordinator also urged that the trial court modify the child support amount so that some of it was redirected to reduce the parent coordinator’s outstanding fee, and the trial court agreed. The overarching problem in the appeals court’s view: “the trial court effectively delegated its judicial authority to the parenting coordinator. … And … subordinated the [mother’s] rights … as a parent to the parenting coordinator’s claims for … payment of her fees.”
If you’re thinking $400 per hour sounds like a job that might fit you, despite the stressful situations and potential for a public reprimand that it involves, you should know that the qualifications for parent coordinators vary widely from state to state. Some states, like Utah, have exacting requirements that parent coordinators 1) be in a profession that requires a graduate or doctoral status, 2) continue their education yearly, 3) complete mandatory training, and 4) be licensed within the state. Ohio imposes similar restrictions.
By contrast, other states, like Maine, ask far less. There, to be appointed a parent coordinator, one must be on the list of approved parent coordinators, like a guardian ad litem (and complete some extra training). But, in Maine, people with no special background can volunteer to become guardian ad litems. In fact, the only requirements to become one are to be at least 21 years old, undergo background checks, and submit an application. This person is then “qualified” to make recommendations to a court in cases involving a child’s welfare and custody. This capacity to weigh in extends even to cases involving domestic violence, despite the fact that judges, the National Institute of Justice, and domestic violence experts all believe special training in domestic violence is warranted.
As with any professional, parent coordinators can be a force for both good and bad. They can measurably improve the interaction between high-conflict spouses, which helps mitigate the impact of a divorce on children. But as the Wade/Funches-Wade split illustrates, the key is to reap the benefits of parent coordinators while minimizing the potential costs. To realize the promise of parent coordinators, judges must exercise considerable oversight—and resist the impulse to delegate away issues that ultimately can only be resolved by judges who are legally and publicly accountable for their decisions.
Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law at the University of Illinois, where she directs the Family Law and Policy Program.