Parenting Facilitators: Off the Record

A few years ago, the Texas legislature added a special form of ADR to the options available to judges and litigants in family law cases: parenting coordinators.

Essentially mediators, parenting coordinators were to assist warring exes about relatively minor issues, like why he never returns the soccer shoes and why she brings her new boyfriend around the kids.

Before this legislation, about the only options that a disputing ex had was vitriolic emails, domestic violence, or engaging lawyers at significant expense.

Using one person, most likely with a mental health background, is more efficient than two suits.

This is especially true if the source of the dispute essentially involves basically passive-aggressive behavior, as opposed to complex legal issues.

While parenting coordination was still a child, in 2009, the Texas Leg gave us another option: “parenting facilitation.”

A parenting facilitator is a parenting coordinator with teeth, sharp teeth.

A parenting coordinator cannot go to the court and rat someone out.

A parenting facilitator can go to court and tell all she has heard during all of the sessions with the parties.

Hmm. That should cause some to pause.

A p/f has the power to “monitor” compliance with court orders, whatever that means.

But, this potential tattletale cannot make recommendations about conservatorship and possession, which strikes me as odd.

Did this infringe on the territory of the social study lobbyists?

Why not allow a p/f to make recommendations about these issues? After all, they are just recommendations. Trial judges may adopt them, reject them, or modify them.

OK, so some influential lawyers wanted a “monitor” who could go to court and tell the judge what is really going on behind the scenes, all the while trying to help people resolve petty disputes and less expense. I’m OK with that.

What strikes me as a little weird, though, is the notion that everything that someone says to a p/f goes “on the record”.

What happens if the exes want to discuss settlement of the issues about which they have been in vigorous disputation?

What if one wants to propose a compromise but fears that if he makes a concession the court will find out about it and penalize him accordingly?

In fact, the rules of civil procedure in every jurisdiction that I know of allow for disputing parties to meet and discuss settlement without reprisals at the courthouse.

Rule 408 of the Texas Rules of Evidence specifically state that “offers to compromise” are inadmissible to prove liability.

Texas Family Code section 153.6083(a), says, “Notwithstanding any rule, standard of care, or privilege”, a communication made by a participant in parenting facilitation is subject to disclosure and may be offered in any judicial or administrative proceeding, if otherwise admissible under the rules of evidence.

“if otherwise admissible under the rules of evidence”.

Like Rule 408?

But, 408 speaks to what is inadmissible, not what is admissible.

There I go again, giving myself a migraine.

So, what happens if one of the parties or his lawyer sends the parenting facilitator a letter stating that all of their communications are intended “for settlement purposes only”?

I just want to go off the record! Please!