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SJC-11478

       WILLIAM J. BOWER      vs.   MICHELLE A. BOURNAY-BOWER.



            Norfolk.    May 8, 2014. - September 15, 2014.

  Present:     Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Divorce and Separation, Parent coordinator. Constitutional Law,
     Judicial review, Delegation of powers. Due Process of Law,
     Right to hearing, Delay in rendering decision.



     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on March 25, 2009.

     A complaint for contempt, filed on October 13, 2011, was
heard by Christina L. Harms, J., and entry of judgment was
ordered by Jennifer M.R. Ulwick, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Susan E. Stenger (Francine Gardikas with her) for Michelle
A. Bournay-Bower.
     Lisa A. Ruggieri & Jocelyn A. Thomsen for William J. Bower.
     Kirsten V. Mayer, Nicole P. Cate, Sara Perkins Jones, Susan
R. Elsen, & Julia E. Schlozman, for Massachusetts Law Reform
Institute & others, amici curiae, submitted a brief.


    SPINA, J.      This case raises an issue of first impression in

the Commonwealth regarding the authority of a judge in a divorce
                                                                       2

or custody proceeding in the Probate and Family Court to

appoint, over the objection of one of the parties, a "parent

coordinator"1 to assist parents in resolving conflicts that arise

in implementing the custody and visitation provisions set forth

in a final judgment of divorce.   Additionally, this case raises

the issue whether a judge may grant binding decision-making

authority to the parent coordinator, again without the consent

of both parties, to resolve conflicts that arise between the

parents regarding custody or visitation.2   We transferred this

case from the Appeals Court on our own motion, and we conclude

that the judge in this case exceeded the bounds of inherent

judicial authority in appointing, without all parties' approval,

a parent coordinator with binding decision-making authority.      We

further conclude that the breadth of authority vested in the


     1
       The Association of Family and Conciliation Courts, an
international, interdisciplinary association of professionals
that has published guidelines for parent coordinator practice,
describes parent coordination as "a child-focused alternative
dispute resolution process in which a mental health or legal
professional with mediation training and experience assists high
conflict parents to implement their parenting plan by
facilitating the resolution of their disputes in a timely
manner, educating parents about children's needs, and with prior
approval of the parties [or] the court, making decisions within
the scope of the court order or appointment contract." The AFCC
Task Force on Parenting Coordination, Guidelines for Parenting
Coordination, 44 Fam. Ct. Rev. 164, 165 (2006).
     2
       We acknowledge the amicus brief submitted in this case by
the Massachusetts Law Reform Institute, Community Legal Services
and Counseling Center, Greater Boston Legal Services, Harvard
Legal Aid Bureau, Justice Center of Southeast Massachusetts,
MetroWest Legal Services, and The Second Step.
                                                                        3

parent coordinator constitutes an unlawful delegation of

judicial authority.     Accordingly, we vacate the order.3

     1.   Background.    a.   Facts.   The parties in this case, whom

we shall call the mother and the father, are divorced parents of

four minor children.     The initial complaint for divorce was

filed in March, 2009.     After more than two years of litigation,

a judgment of divorce nisi entered on May 11, 2011.      The

judgment provided for shared legal custody of the parties' four

children and incorporated and merged the parties' separation

agreement, which contained a detailed six-page parenting plan.

The judgment further set forth provisions for visitation with

the children during winter holidays and summer vacations as the

parties were unable to reach an agreement regarding visitation

during those time periods.

     By the end of 2011, each of the parties had filed contempt

complaints alleging that the other had violated various terms of

the divorce judgment, including the obligation to adhere to the

parenting time schedule and the obligation to share decision-

making regarding major issues in the children's lives.         The

father's complaint requested that the mother be adjudged in


     3
        We do recognize, however, the important role that parent
coordinators may serve in assisting divorcing or divorced
parents in resolving custody and visitation disputes outside of
court. Consequently, as discussed at the end of this opinion,
we refer this issue to the Probate and Family Court to consider
the adoption of a rule governing the appointment of parent
coordinators in appropriate proceedings.
                                                                   4

contempt and that she be ordered to participate in parenting

coordination and to be bound by the decisions of the parent

coordinator.

     At the hearing on the parties' complaints for contempt, the

judge declined to hear argument on the allegations contained in

the complaints for contempt and instead focused on the father's

request that a parent coordinator be appointed in this case.4

The mother objected to the appointment of a parent coordinator

and indicated that she preferred for the judge, who was familiar

with the case, to enforce the judgment and to resolve disputes

arising from the parties' implementation of the parenting plan.

     Despite the mother's objections at the hearing, the judge

issued an order requiring the parties to utilize the services of

the parent coordinator identified in the order.5   In substance,

the order required the parent coordinator to hear all of the

     4
       At the hearing, the judge explained that she was focused
on the issue of the appointment of a parent coordinator because
she hoped to implement a process that could help to prevent the
sorts of disputes that had given rise to the complaints for
contempt in this case. As the judge stated at the hearing, "I
have to decide first how to get you out of this cycle where you
gather up a bunch of stuff, you come in like a volcano
overflowing, and all the bad stuff has actually already
happened, and I can't get a handle on how it happened. . . .
I'm [going to] try to get . . . a system in effect . . . that
maybe gets a little bit ahead of these problems and starts to
give some relief."
     5
       The order originally issued by the judge contained an
incomplete sentence, which was corrected in a subsequent
"clarified order." As the clarified order was issued later and
binds the parties, we refer to the clarified order as "the
order" at issue in this case.
                                                                   5

parties' current and future disputes regarding custody and

visitation in the first instance, before the parties could file

any action regarding these disputes in court.   The order also

granted the parent coordinator the authority to make binding

decisions on matters of custody and visitation and provided that

these decisions must be complied with by the parties as if they

were court orders unless one of the parties were to go to the

court before the decision was to take effect and obtain a

contrary order.6

     After the retirement of the judge who issued this order,

another judge issued a decision on the parties' contempt

complaints, and in so doing, ordered the parties to adhere to

the order appointing the parent coordinator.    After the decision

on the contempt complaints was entered as a judgment, the mother

appealed the order appointing the parent coordinator, and we

transferred this case on our own motion.


     6
       The order provided in full: "Effective immediately, a
Parent Coordinator shall serve to hear all disputes between the
parties regarding custody and visitation, in the first instance,
before such matters are brought before the court. The Parent
Coordinator shall have BINDING AUTHORITY to issue rulings
concerning disputes brought to her, and the parties must comply
with her decisions as if they were court orders, UNLESS either
party, dissatisfied, comes to court before the decision is to
take effect, and obtains a contrary order. The Parent
Coordinator shall be paid for her services by the father.
However, nothing herein precludes the Parent Coordinator from
making a different fee recommendation at any time, if she feels
that the conduct of the mother so warrants." (Emphases in
original.) The order further named a specific parent
coordinator with whom the parties were to engage.
                                                                    6

     The mother now argues that the judge lacked both express

and inherent authority to appoint a parent coordinator, that the

order here constituted an unlawful delegation of judicial

authority, and that where the mother did not consent to the use

of a parent coordinator, the order infringed on her due process

right of access to the courts.7   Although we recognize, as did

the judge in this case, that parent coordinators may provide

valuable assistance to parents in implementing custody and

visitation plans, we conclude that the order at issue here

exceeded the bounds of the judge's inherent authority and was so

broad in scope that it constitutes an unlawful delegation of

judicial authority.   Accordingly, we vacate the order appointing

the parent coordinator and so much of the subsequent judgment as

required the parties to comply with the order.

     b.   Role of a parent coordinator.   Generally, parent

coordinators, whose backgrounds may be in mental health, family

law, or other relevant fields, are understood to serve as

neutral third parties who assist separated or divorced parents

in resolving conflicts that arise in the implementation of

custody and visitation arrangements in a manner that reduces the

impact of the parents' conflict on their children.    C.P.

Kindregan, Jr., M. McBrien, & P.A. Kindregan, Family Law and


     7
       In the Probate and Family Court, the mother also sought a
stay of the order appointing the parent coordinator while this
appeal was pending, which was granted.
                                                                     7

Practice § 37:3 (4th ed. 2013).    The specific nature of the role

of a parent coordinator varies significantly both within and

among jurisdictions that permit such appointments.   See, e.g.,

Fla. Stat. § 61.125 (2009); N.D. Cent. Code § 14-09.2-01 (2009);

Or. Rev. Stat. § 107.425 (2008).    In certain circumstances, the

role of parent coordinator may be analogous to that of a

mediator, in others to that of a master, and still in others,

the parent coordinator's role combines multiple functions.    See,

e.g., Minn. Stat. § 518.1751(1b)(c) (2001) (parent coordinator

authorized to use "mediation-arbitration process" in which

parent coordinator facilitates dispute resolution in first

instance but is permitted to issue decision resolving dispute

where parents cannot agree); Ariz. R. Fam. Law P. 74(E), (F)

(2011) (parent coordinator is authorized to interview family and

household members, health care providers, and school officials

and to make recommendations to court regarding implementation or

modification of custody and parenting time orders, or to

recommend that parties or children participate in ancillary

services such as counselling or substance abuse monitoring);

Utah Jud. Admin. R. 4-509 (2009) (parent coordinator's role is

"like that of the mediator," and authority is limited to making

recommendations directly to parties and facilitating parents'

creation or revision of parenting plan).    In some jurisdictions,

the parent coordinator's role is to provide a hybrid of a
                                                                   8

mediation and arbitration services in which the parent

coordinator seeks to facilitate dispute resolution between the

parties in the first instance, but if the dispute is

intractable, the parent coordinator is permitted to issue a

binding decision resolving the conflict.   See, e.g., Fla. Stat.

§ 61.125(1); Minn. Stat. § 518.1751 (1b)(c) (2001); N.C. Gen.

Stat. § 50-92(b) (2005); Okla. Stat. Ann. tit. 43, § 120.2 (West

2003); Idaho R. Fam. Law P. 716(G)(1)(e) (2014).   In other

jurisdictions, a parent coordinator may provide alternative

dispute resolution services and serve certain quasi judicial

functions such as gathering facts or making recommendations to

the court.   See, e.g., La. Rev. Stat. Ann. § 9:358.4(C) (2007);

Or. Rev. Stat. § 107.425(3)(a)(A), (C); S.D. Codified Laws § 25-

4-70(5) (2013); Ariz. R. Fam. Law P. 74(E), (F).

    Over the past several years, the use of parent coordinators

to assist parents in developing and implementing custody and

visitation arrangements has become increasingly common across

the country as well as in Massachusetts.   See Jordan v. Jordan,

14 A.3d 1136, 1153 (D.C. 2011) (referencing thirty jurisdictions

in twenty-seven States that permit appointment of parent

coordinators by statute or court rule).    See also Katzman v.

Healy, 77 Mass. App. Ct. 589, 594 n.6 (2010) (discerning no

error in order requiring parents to implement provision of

separation agreement calling for use of parent coordinator);
                                                                   9

Tammaro v. O'Brien, 76 Mass. App. Ct. 254, 255 n.3 (2010)

(referencing provisions in separation agreement merged into

final judgment of divorce that required parents to use parent

coordinator); R.S. v. M.P., 72 Mass. App. Ct. 798, 802 n.8

(2008) (referencing appointment of parent coordinator in case

while complaint for modification was pending).   Indeed, judges

in our courts have acknowledged the potential benefits provided

by parent coordinators, particularly in more contentious cases.

See, e.g., R.S., supra (describing probate court judge's

rationale in appointing parent coordinator as providing parties

with "convenient, expeditious and economical forum to help them

to resolve decision making regarding their children").

    Despite the increasing use of parent coordinators in

Massachusetts, the specific functions of a parent coordinator,

including the parent coordinator's duties, necessary

qualifications, or scope of authority, have not been set forth

by statute or court rule.   See, e.g., 2007 Senate Doc. No. 895,

"An Act relative to the appointment of parenting coordinators in

the probate courts" (never enacted by the Legislature).

Massachusetts statutes and court rules recognize various types

of alternative dispute resolution practices and define the roles

of quasi judicial officers including guardians ad litem and

masters who may investigate facts and make reports to the court.

However, no statute or court rule specifically recognizes either
                                                                   10

the role of a parent coordinator or the service of parent

coordination.

    For example, S.J.C. Rule 1:18, as amended, 442 Mass. 1301

(2004) (Uniform Rules on Dispute Resolution), sets forth a

comprehensive scheme of rules governing court-connected

alternative dispute resolution services.   The rules address in

detail the administrative structure for court-connected dispute

resolution services, the implementation of court-connected

dispute resolution, the respective duties of the courts and

approved dispute resolution programs with respect to court-

connected dispute resolution services, and the qualifications

and ethical standards for providers.   The rules recognize

"[d]ispute resolution service[s]" that include, but are not

limited to, "arbitration," "case evaluation," "conciliation,"

"mediation," "mini-trial," and "summary jury trial."    Uniform

Rule 2.   Rule 2 also separately defines "[d]ispute

intervention," which is a process used in the Probate and Family

Court and in the Housing Court in which a neutral identifies the

areas of dispute between the parties and assists in the

resolution of differences.

    Under the rules, parties may not be compelled to

participate in dispute resolution services except that the

Probate and Family Court may require parties to participate in

dispute intervention.   Uniform Rule 6 (d).   However, any trial
                                                                  11

court department may seek authorization from the Chief Justice

of the Trial Court to implement a mandatory dispute resolution

program in civil cases.    Uniform Rule 4 (c).   Such mandatory

programs must meet certain minimum requirements, including that

each party must be permitted to petition the court to terminate

dispute resolution services for good cause shown; that the court

shall give preference to a dispute resolution process upon which

the parties agree; that the court must explicitly inform parties

that they are not required to settle their case or resolve their

dispute in the dispute resolution process; and that no fees may

be charged to any party that is required to participate in

dispute resolution.    Uniform Rule 4 (c) (i)-(iv).

    Similarly, G. L. c. 215, § 56A, authorizes the appointment

of a guardian ad litem in any proceeding pending in probate

court.   The guardian ad litem is required to investigate facts

involving the care, custody, and maintenance of minor children

and to report the results of the investigation to the judge in

writing before issuance of a final judgment or decree in the

proceeding.    See Probate and Family Court Standing Orders 1-05,

1-08 (2008) (establishing comprehensive standards governing

duties, methodologies, and qualifications of guardians ad litem

who act as custody, visitation, or adoption investigators or

evaluators).   Further, Mass. R. Civ. P. 53 (b) (1), as appearing

in 423 Mass. 1408 (1996), permits a court in which a civil
                                                                 12

action is pending to appoint a master, subject to the assent of

the parties, to hear evidence and report facts to the judge.

Rule 53 further sets forth rules governing a master's

qualifications, compensation, powers, and responsibilities.    See

Mass. R. Civ. P. 53 (b) (1), (c), (e), (g), (h).

     Although a parent coordinator may be qualified to provide

many of the services contemplated by S.J.C. Rule 1:18, or G. L.

c. 215, § 56A, or Mass. R. Civ. P. 53, the father does not argue

that the authority to appoint the parent coordinator is implicit

in an existing statute or court rule, nor did the judge appear

to derive her authority to appoint the parent coordinator from

an existing statute or court rule.8   Consequently, despite


     8
        Even if the father had argued that the appointment here
was authorized by a statute or rule governing court-connected
alternative dispute resolution or the appointment of masters or
guardians ad litem, the terms of the appointment here did not
conform to any of these rule schemes. For example, the
appointment here was made over the objection of the mother, but
there is no indication in the record that a pilot program for
mandatory dispute resolution was in place at the time as
required by S.J.C. Rule 1:18, as amended, 442 Mass. 1301 (2004)
(Uniform Rules on Dispute Resolution). See Uniform Rule 4 (c)
(requiring trial court departments to obtain approval from Chief
Justice of the Trial Court prior to implementing programs
requiring parties to participate in dispute resolution without
their consent). Further, the services of the parent coordinator
were not free, and the parent coordinator was authorized to
issue decisions with the binding effect of court orders.
Compare Uniform Rule 4 (c) (iii), (iv) (outcome of mandatory
dispute resolution services may not be binding on parties, and
services must be provided free of charge). Additionally,
although the record here indicates that the judge selected the
particular parent coordinator because of her knowledge of the
parent coordinator's exceptional qualifications, there is no
indication in the record that the judge selected the parent
                                                                  13

existing rules governing alternative dispute resolution and the

appointment of quasi judicial officers, either of which may have

provided a basis for the judge's authority to appoint a parent

coordinator if the parent coordinator's role had been limited in

scope and analogous to the services contemplated by these rules,

we must consider the parties' arguments regarding inherent

judicial authority as the source of the judge's authority to

issue the order in this case.

    2.   Judge's inherent authority to appoint a parent

coordinator.   The mother argues that without express

authorization by statute or court rule, and without agreement of

the parties, the judge was without authority to appoint a parent

coordinator in this case.   The father argues that the use of

parent coordinators in Massachusetts has become increasingly

common, and that in the absence of a statutory prohibition, it


coordinator from a list maintained by the Probate and Family
Court as contemplated by Uniform Rule 4 (a), requiring
maintenance of an appointment docket for fee-generating
appointments in all courts. Further, the parent coordinator in
this case was not ordered to act in a role akin to that of a
quasi judicial officer investigating or finding facts or
reporting them to the court. Rather, the parent coordinator was
authorized to issue binding decisions on the merits of the
parties' present and future disputes regarding custody or
visitation, a role that exceeds the scope of authority of either
a master or a guardian ad litem. See Mass. R. Civ. P. 53 (a)
(i) (masters hear evidence in any action and report facts to
court); Probate and Family Court Standing Orders 1-05, 1-08
(2008) (guardian ad litem investigators gather and report
factual data to court and guardian ad litem evaluators gather
and report data and offer clinical opinions when competent to do
so).
                                                                    14

was a permissible exercise of the judge's discretion to appoint

a parent coordinator.   See Matter of Moe, 385 Mass. 555, 561

(1982) (recognizing broad, equitable power of probate court to

act in best interests of persons in its jurisdiction).    We

conclude that judges in the Probate and Family Court possess the

inherent authority to appoint parent coordinators in appropriate

circumstances but that the appointment in this case exceeded the

bounds of that authority.

    We have long recognized that courts in this Commonwealth

possess certain inherent powers whose exercise is "essential to

the function of the judicial department, to the maintenance of

its authority, or to its capacity to decide cases."    Sheriff of

Middlesex County v. Commissioner of Correction, 383 Mass. 631,

636 (1981), citing Opinion of the Justices, 279 Mass. 607, 613

(1932).   See Blankenburg v. Commonwealth, 260 Mass. 369, 372-373

(1927).   These powers are necessary to "secure the full and

effective administration of justice" and thus extend beyond

adjudication to ancillary functions such as rule-making and

judicial administration.    O'Coin's, Inc. v. Treasurer of the

County of Worcester, 362 Mass. 507, 510, 514 (1972).

    Moreover, by statute, divisions of the Probate and Family

Court Department are courts of "superior and general

jurisdiction with reference to all cases and matters within

which they have jurisdiction."   G. L. c. 215, § 2.
                                                                    15

Specifically, the Legislature has granted probate courts

jurisdiction over, among other areas, the appointment of

guardians and conservators, along with exclusive original

jurisdiction over actions for divorce and actions related to the

care, custody, education, and maintenance of minor children.

G. L. c. 215, §§ 2, 3, 4.   This jurisdiction extends to

equitable powers.   G. L. c. 215, § 6.   Thus, we have recognized

that a probate court possesses broad and flexible inherent

powers essential to the court's duty to act in the best

interests of persons under its jurisdiction.    See Matter of Moe,

385 Mass. at 563.   For example, we have recognized the inherent

authority of a probate court to appoint a guardian ad litem in

order to protect the interests of a person in a proceeding

before it or to ensure the proper functioning of the court.      See

Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass.

728, 755 (1977), citing Lynde v. Vose, 326 Mass. 621 (1951), and

Buckingham v. Alden, 315 Mass. 383 (1944).    Further, we have

recognized the inherent authority of a probate court to rule on

a petition by a guardian seeking court authorization to permit

an extraordinary medical procedure to be undertaken on behalf of

a ward.   See Matter of Moe, supra at 556, 562.

    Indeed, referral of appropriate cases to parent

coordination or other alternative dispute resolution services

may help to expedite the disposition of those cases and provide
                                                                  16

a more satisfying and timely resolution of certain custody- and

visitation-related disputes for the parties.   One recognized

feature of parent coordination services is that parent

coordinators can help to resolve disputes about "day-to-day"

custody and visitation issues.   See Sullivan, Parenting

Coordination:   Coming of Age?, 51 Fam. Ct. Rev. 56, 56 (2013).

See also The AFCC Task Force on Parenting Coordination,

Guidelines for Parenting Coordination, 44 Fam. Ct. Rev. 164, 172

(2006).   Such disputes could arise from determining how to

adjust visitation if school is unexpectedly canceled, which

family members will attend a special event such as an award

ceremony or athletic competition, whether both parents may

attend a parent-teacher conference, or how accommodations will

be made if a parent or child becomes ill.   In light of the

number of cases filed daily in the Probate and Family Court, a

parent coordinator may be available to assist the parties in

resolving such a dispute sooner than a hearing before a probate

court judge becomes available -- and perhaps before the dispute

at issue gives rise to a complaint for contempt or other formal

proceeding.

    Therefore, probate court judges possess the inherent

authority to refer parties to a parent coordinator in

appropriate circumstances in order to conserve limited judicial

resources and aid in the probate court's functioning and
                                                                  17

capacity to decide cases, or if in the judge's discretion such

referral is necessary to ensure the best interests of the

children in a divorce- or custody-related proceeding.     See State

Realty Co. of Boston v. MacNeil Bros., 358 Mass. 374, 379

(1970), quoting Link v. Wabash R.R., 370 U.S. 626, 630-631

(1962) (courts possess inherent power to "manage their own

affairs so as to achieve the orderly and expeditious disposition

of cases"); Bahceli v. Bahceli, 10 Mass. App. Ct. 446, 449

(1980) (in custody proceeding, "[t]he overriding concern of the

court must be the best interest of the child").   However, this

authority is not without limit.

    The inherent powers of the courts of the Commonwealth,

including the Probate and Family Court, operate within certain

boundaries.   For example, we held that a Juvenile Court judge

does not possess the inherent authority to order parents to open

their home to investigators from the Department of Social

Services seeking a nonemergency home visit following an

anonymous report of child abuse because the power to issue such

an order was not in aid of the court's ability to function as a

court.   See Parents of Two Minors v. Bristol Div. of the

Juvenile Court Dep't, 397 Mass. 846, 851-853 & n.3 (1986)

(contrasting G. L. c. 119, § 22 [1984], which authorized

Juvenile Court judges to issue warrants permitting agents of

Department of Social Services to enter foster homes to
                                                                  18

investigate treatment and condition of children therein).

Further, we have held that a probate court does not possess the

inherent authority to levy an obligor's property in order to

recover child support arrearages where the authority to collect

such arrearages was delegated by statute to the Department of

Revenue and the recovery of unpaid support by the probate court,

as compared to the authority to order prospective support

payments, was not essential to the court's functioning,

authority, or capacity to decide cases.   See Gray v.

Commissioner of Revenue, 422 Mass. 666, 672-673 (1996)

(interpreting G. L. c. 209C, § 9 [a], and G. L. c. 119A, § 6

[a], [b] [1]).

     Moreover, we have stated that inherent judicial powers

arise from the individual right to the "impartial interpretation

of laws, and administration of justice" guaranteed by art. 29 of

the Massachusetts Declaration of Rights along with the right to

seek recourse under the laws and to obtain justice freely,

completely, promptly, and conformably to the laws, as provided

by art. 11.9   See First Justice of the Bristol Div. of the

Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of

     9
       Article 11 of the Massachusetts Declaration of Rights
states in full: "Every subject of the commonwealth ought to
find a certain remedy, by having recourse to the laws, for all
injuries or wrongs which he may receive in his person, property,
or character. He ought to obtain right and justice freely, and
without being obliged to purchase it; completely, and without
any denial; promptly, and without delay; conformably to the
laws."
                                                                      19

the Juvenile Court Dep't, 438 Mass. 387, 396-397 (2003) ("It is

from these lofty principles that flows the concept of inherent

judicial powers . . .").     Therefore, we have held that judges

must exercise their inherent powers to secure the full and

effective administration of justice.     Querubin v. Commonwealth,

440 Mass. 108, 114-115 (2003).     O'Coin's, Inc., 362 Mass. at

514.

       What follows, then, is that inherent judicial powers should

not be exercised in a manner that undermines the very

constitutional rights from which those powers arise.        Here, the

nature of the authority granted to the parent coordinator in the

order of appointment, combined with the procedural requirements

in the order, including the limits on the parents' right to file

an action in court, and the limits on judicial review of the

parent coordinator's decisions, raise significant due process

concerns, implicating, among other rights, those guaranteed by

art. 11 of the Massachusetts Declaration of Rights.      Therefore,

these due process concerns assist us in identifying the outer

limits of a judge's inherent authority to refer parties to a

parent coordinator.

       a.   Binding authority of parent coordinator.   A judge's

inherent authority does not extend to compelling a party to

submit to the binding decision-making authority of a parent

coordinator without that party's consent.     Among other
                                                                   20

protections, art. 11 of the Massachusetts Declaration of Rights

safeguards an individual's right to seek recourse under the law

for all injuries or wrongs to persons, property, or character.

The order here infringed upon this right because it required the

mother, without her consent, to submit all disputes to a parent

coordinator, rather than to a judge, for binding resolution.

This sort of binding decision-making authority is a power

commonly held by an arbitrator.   See, e.g., Uniform Rule 2

("'Arbitration' means a process in which a neutral renders a

binding or non-binding decision after hearing arguments and

reviewing evidence").   We held in Gustin v. Gustin, 420 Mass.

854, 857-858 (1995), that a judge may not compel parties to

submit to binding arbitration without their consent.    Further,

although our rules governing the implementation of court-

connected dispute resolution services contemplate pilot programs

for mandatory participation in alternative dispute resolution,

such programs may extend only to nonbinding dispute resolution

services.   See Uniform Rule 4 (c).   A court in at least one

other State has held that granting a parent coordinator binding

decision-making authority without the consent of the parties

violates the parents' due process rights.10   See Kilpatrick v.

Kilpatrick, 198 P.3d 406, 410 (Okla. Civ. App. 2008).


     10
       We also observe that the order does not set forth, nor
does the record indicate, whether any provision was made for
representation by counsel in appearances before a parent
                                                                  21

     b.   Deferral of decision on pending contempt complaint.

Moreover, the order infringed on the mother's right to have the

merits of her pending contempt complaint screened by a judge

early in the proceedings before referral to a parent

coordinator.   Indeed, the judge issued the order in this case

during the parties' hearing on their cross complaints for

contempt without hearing the parties on the merits of their

claims or issuing a ruling on those complaints.    The order

appointing the parent coordinator therefore served to defer the

judge's decision on the mother's claims regarding disputed

actions that had already taken place that may have constituted a

violation of the final divorce judgment.    To defer this decision

over the mother's objection effectively infringed upon her right

to seek recourse under the law for the father's alleged failure

to adhere to the terms of the judgment.11


coordinator or whether any other standards were imposed by the
court governing the procedures a parent coordinator must follow
prior to issuing a binding decision which could affect the
parents' fundamental rights in the custody and visitation
context. Consequently, the absence of both parents' consent to
the appointment raises significant procedural due process
concerns as well.
     11
       A judge's inherent authority likely extends to a
recommendation to the parties to use the services of a parent
coordinator prior to a scheduled contempt hearing, perhaps with
the hope that the parties will resolve the conflict that gave
rise to the contempt complaint and withdraw the complaint or
present a resolution to the judge at the hearing. However,
deferring a party's right to be heard on a contempt complaint
during the contempt hearing approaches an infringement of the
parties' right to seek recourse under the law. Similarly, if
                                                                    22

     c.   Prior restraint on future litigation.   Additionally,

the order here functionally placed a prior restraint on the

parents' ability to file any future claim related to custody or

visitation in court.   Indeed, the order expressly required the

parties to submit all disputes regarding custody or visitation

to the parent coordinator "before such matters are brought

before the court."   This provision is unlike programs which may

permit referral of a case to mediation or other alternative

dispute resolution once the claims are reviewed by a judge and

determined to be appropriate for such referral.    G. L. c. 211B,

§ 19 (authorizing mandatory, nonbinding dispute resolution pilot

program which requires screening and referral after action

filed).   The order here denies the parents the right even to

obtain access to the court regarding future disputes or other

issues without first engaging with the parent coordinator.       This

prior restraint on the ability to file future claims without

both parents' consent may also infringe upon the parties' right

to seek "recourse to the laws."12   Art. 11.   In an analogous


the parties were before a judge in another type of proceeding in
which immediate judicial action were necessary, for example, to
enjoin an ongoing violation of a divorce judgment or temporary
visitation plan, a judge should not defer the decision and refer
the parties to a parent coordinator.
     12
       Further, although the father in this case consented to
pay for the services of the parent coordinator, requiring
parties to use the services of a parent coordinator prior to
filing any future actions related to custody and visitation
could amount to conditioning the right of access to the courts
                                                                   23

context, one State court held that a judge's bar on future

postjudgment filings by parties to a divorce proceeding, absent

demonstrated, good-faith participation in a "four-way settlement

conference," constituted an impermissible burden on the parties'

due process right of access to the courts.13   Parish v. Parish,

988 A.2d 1180, 1182, 1190 (N.J. Super. Ct. App. Div. 2010).


on the use of a costly service. Although the record before us
does not reflect the fees charged by the parent coordinator
appointed in this case, the amici state that parent coordinators
may charge several hundred dollars per hour. See, e.g., Segal
v. Lynch, 211 N.J. 230, 236 (2012) (parent coordinator's
proposed retainer agreement provided for initial joint retainer
of $5,000 against which fee of $325 per hour would be billed);
Raviv v. Raviv, 64 A.D.3d 638, 638 (N.Y. 2009) (parent
coordinator fee called for $2,500 retainer and $250 per hour
after retainer). Parent coordinator fees in Massachusetts are
not regulated by statute or court rule. Such a precondition on
filing a claim implicates the right to access justice "without
being obliged to purchase it" under art. 11, and the
precondition offends Federal due process values where it could
operate to foreclose a party's opportunity to access the court
as a result of the party's inability to pay. See Boddie v.
Connecticut, 401 U.S. 371, 380-382 (1971).
     13
       We also observe that a prior restraint on litigation is
especially concerning in cases that may involve domestic
violence. Although not at issue in this case, requiring a party
who is or has been a victim of domestic violence at the hands of
the other party to submit to binding alternative dispute
resolution with a parent coordinator as a prerequisite to filing
a claim in court could result in requiring a party effectively
to choose between safety and access to the courts. See 2007
Senate Doc. No. 895 (proposed parent coordinator legislation, if
enacted, would have permitted court to terminate parent
coordinator's appointment upon showing of past or present
domestic violence that put victimized parent or child at risk of
physical or emotional harm). In related contexts, the Probate
and Family Court has recognized that cases involving domestic
violence should be exempt from certain procedures requiring the
parties to meet outside of court. See, e.g., Probate and Family
Court Standing Order 1-06(4)(a) (2006) (in cases where domestic
                                                                  24

    d.   Impediments to judicial review.   Finally, the form of

judicial review of the parent coordinator's decisions in the

order at issue in this case is insufficient to cure the

limitations on access to the courts created by compelling a

parent to submit to binding dispute resolution.   Particularly in

a case where one parent did not consent to this arrangement, it

is not clear that merely providing for review of a parent

coordinator's binding decision upon motion by a party is

adequate to safeguard the parties' constitutional right of

access to the court.   Indeed, even where both parties consent to

participate in arbitration, the arbitrator's award is generally

made binding by court order.   See Glenn Acres, Inc. v. Cliffwood

Corp., 353 Mass. 150, 156 (1967) (statutory scheme governing

commercial arbitration contemplates that finality of

arbitrator's award is "subject to and dependent upon the entry

of a judgment or decree by the court").

    Further, by the express terms of the order, judicial review

of a parent coordinator's binding decision may be entirely

unavailable in many circumstances.   Specifically, the order

provides in relevant part that decisions of the parent

coordinator are binding as if court orders "unless either party,

violence restraining order has been issued, parties not expected
to confer out of court for purposes of agreeing on proposed
schedule for trial); Probate and Family Court Standing Order 1-
10(B) (2010) (in cases where domestic violence restraining order
has been issued, parties exempted from "introductory meeting"
requirement).
                                                                    25

if dissatisfied, comes to court before the decision is to take

effect, and obtains a contrary order."    Thus, the temporal

restrictions on the face of the order make clear that meaningful

judicial review may be unavailable for any decision of the

parent coordinator that will take effect before the party can

obtain review by a judge.    Indeed, parent coordination services

may be particularly beneficial to families in which disputes

arise that require resolution sooner than a court may be

available to hear a claim.    See Sullivan, Parenting

Coordination:   Coming of Age?, 51 Fam. Ct. Rev. 56, 56 (2013).

See also The AFCC Task Force on Parenting Coordination,

Guidelines for Parenting Coordination, 44 Fam. Ct. Rev. 164, 172

(2006).   Although expediency may be a beneficial feature of

parent coordination services, the nature of these disputes also

diminishes the practical availability of judicial review of a

parent coordinator's decisions.    Indeed, conflicts over day-to-

day issues could arise and be decided by a parent coordinator

within days of the event but without sufficient time to appeal

the decision to the court before the appeal of the parent

coordinator's decision is effectively moot.   Even disputes that

arise within a few weeks or months of the event in issue must

first be decided by the parent coordinator, which could leave

little time between the issuance of the parent coordinator's

decision and the disputed event.   Thus, by the plain wording of
                                                                  26

this order, judicial review of some, if not many, of the parent

coordinator's decisions could be completely unavailable.

    Consequently, a judge in the Probate and Family Court

possesses the inherent authority to refer parties to a parent

coordinator.   However, the appointment in this case exceeded the

bounds of that authority by granting the parent coordinator

binding decision-making authority without the consent of a

party, deferring the decision on the parties' pending contempt

complaints during the hearing on those complaints, placing a

prior restraint on future claims also without the parties'

consent, and potentially impeding judicial review of the parent

coordinator's binding decisions.

    If the parties had consented to the appointment, or if the

parent coordinator's authority had been limited to assisting the

parties in resolving their disputes by issuing recommendations

to the parties, the referral to the parent coordinator may have

been permissible as a way to further the court's capacity to

decide cases by encouraging resolution of the parties' disputes

by the parties themselves.   Similarly, if the referral had not

been made in lieu of a hearing and ruling on the parties'

contempt complaints, but had been ordered while the parties were

waiting for a scheduled hearing on the contempt, or as a way to

expedite the negotiation of a settlement agreement or visitation

plan while a divorce proceeding or complaint for modification
                                                                   27

were pending, such an order may have been justified by the

court's inherent authority.   However, in this case, the order,

both in the nature of the authority granted to the parent

coordinator and at the point in the proceedings in which it was

issued, undermined the parties' right of access to the courts

and therefore exceeded the scope of the judge's authority.

Moreover, even if the order had arisen from a valid exercise of

the judge's inherent authority, the scope of authority granted

to the parent coordinator in this case constituted an unlawful

delegation of judicial decision-making authority and must be

vacated on that ground.

    3.   Judge's delegation of authority to the parent

coordinator.   The order appointing the parent coordinator in

this case provided that the parent coordinator "shall serve to

hear all disputes between the parties regarding custody and

visitation."   The mother argues that the scope of this order is

so broad that it constitutes an unlawful delegation of judicial

authority because nothing in this order prevents the parent

coordinator from making structural changes to the custody

arrangement without regard to the statutory standards which

govern modification of final divorce judgments and because the

judge abdicated her statutory authority to decide whether

modifications to the custody arrangement are warranted.   We

agree.
                                                                   28

     By statute, if a party seeks a modification of a final

judgment of divorce, a judge may make a judgment modifying his

or her earlier judgment provided the judge finds that "a

material and substantial change in the circumstances of the

parties has occurred and the judgment of modification is

necessary in the best interests of the children."     G. L. c. 208,

§ 28.     No such standard governs the parent coordinator in the

order at issue in this case.     Indeed, if a dispute were to arise

between the parents regarding the fundamental terms of the

custody arrangement set forth in the final judgment of divorce,

nothing in this order would prevent the parent coordinator from

issuing a binding decision altering those fundamental terms

without considering either a material change in the

circumstances or the best interests of the children.14    Thus, the

order is unlawful because it empowers the parent coordinator to

make alterations to the parties' custody and visitation

arrangements without regard to statutory criteria governing such

changes.    See G. L. c. 208, § 28.


     14
       The father argues that the order does not exceed the
scope of the judge's authority because neither the judge nor the
father intended for the parent coordinator to be permitted to
make significant, structural changes to the parties' custody and
visitation plan. However, the plain language of the order
conveys no such limitation. For example, if a dispute were to
arise between the parents regarding winter visitation, such a
dispute would appear to fall within the ambit of the authority
granted to the parent coordinator to resolve, yet it could also
involve a fundamental change to the parenting schedule set forth
in the final judgment of divorce.
                                                                  29

    Moreover, even if the order had required the parent

coordinator to apply the same statutory standard that governs a

judge in ruling on a complaint for modification, the statute

authorizes, and indeed obligates, the judge to issue the final

decision on any modification to the family's custody

arrangement.   See Gustin, 420 Mass. at 857-858 (statute granting

probate judge discretion to make fair and equitable division of

property upon divorce grants judge "authority" and "obligation"

to make determination); Heistand v. Heistand, 384 Mass. 20, 26

(1981) (in complaint for modification of divorce judgment,

determination of "extent and palpability" of changed

circumstances lies in discretion of trial judge).   In similar

cases we have held that a judge cannot shift the final decision-

making authority granted by statute to a third party.   See

Silverman v. Spiro, 438 Mass. 725, 736-737 (2003) (judge could

not grant therapist "sole authority" to determine when parent-

child visitation would be appropriate where statute obligated

judge to make specific findings on issue of visitation);

Worcester County Trust Co. v. Marble, 316 Mass. 294, 301 (1944)

(judge could not delegate to trustee authority to determine what

constitutes "reasonable" legal fees where statute requires judge

to make that determination).   See also P.W. v. M.S., 67 Mass.

App. Ct. 779, 785-786 (2006) (judge cannot delegate wholesale to

guardian ad litem statutory duty to conduct in camera review of
                                                                   30

documents over which privilege asserted).   Consequently, the

scope of the authority granted to the parent coordinator in this

case renders the order an unlawful delegation of judicial

authority, and it must be vacated.

    4.   Referral to the Probate and Family Court.   Although the

order appointing the parent coordinator in this case must be

vacated because it exceeds the bounds of the judge's inherent

authority and constitutes, by its terms, an unlawful delegation

of judicial decision-making authority, we recognize the valuable

role that parent coordinators may play in assisting families

involved in the Probate and Family Court system.   Consequently,

we refer this matter to the Probate and Family Court to review

and consider the promulgation of a rule governing the

appointment of parent coordinators.

    A rule will help to ensure that procedural and substantive

safeguards are in place in any appointment of a parent

coordinator to address issues including the selection of a

parent coordinator, the points in proceedings when parties may

be referred to a parent coordinator, the nature and scope of the

authority that may be granted to a parent coordinator, and

issues related to the apportionment and payment of the parent

coordinator's fees.   For example, a list of approved providers

should be maintained and appointments distributed fairly

therefrom in order to address the concerns regarding favoritism
                                                                   31

in fee-generating appointments set forth in S.J.C. Rule 1:07, as

amended, 431 Mass. 1301 (2000).   Further, a judge may not

require the parties to use the services of the parent

coordinator if the order would require one or both parents to

pay for the services without his or her consent.   Additionally,

even in a case where the parties consent to pay, various

divisions of a parent coordinator's fee may be appropriate

depending on the financial circumstances of each parent or the

posture of the case.   However, care should be taken to ensure

that the apportionment of fees does not give rise to the

appearance of bias by the parent coordinator or give rise to

problematic incentives of the parties.

    Additionally, a rule could assist in delineating the scope

of authority that may be delegated to a parent coordinator

without constituting an unlawful delegation of judicial

authority.   For example, we have held that in some circumstances

the delegation of certain judicial tasks to quasi judicial

officers or third-party neutrals is permissible.   See Gustin,

420 Mass. at 857-858 (judge could, in his discretion, require

parties to submit dispute over property division to court-

appointed intermediary to find facts and make recommendations

provided that intermediary was not authorized to make binding

decisions without consent of parties); Jones v. Jones, 349 Mass.

259, 264 (1965) (judge may delegate fact-finding functions to
                                                                   32

guardian ad litem and consider recommendations contained in

reports, provided judge retains ultimate responsibility to make

custody decision).   Additionally, many jurisdictions that

authorize the appointment of parent coordinators by statute or

court rule expressly restrict the range of the parent

coordinator's decision-making authority.   See, e.g., Fla. Stat.

§ 61.125(1) (2009) (with prior approval of parents and court,

parenting coordinator may be authorized to make limited

decisions within scope of court's order of referral); La. Rev.

Stat. Ann. § 9:358.4(C) (2007) (parenting coordinator may not

issue decisions but may submit recommendations in report to

judge for final determination of disputes); N.C. Gen. Stat.

§ 50-92(b) (2005) ("court may authorize a parenting coordinator

to decide issues regarding the implementation of the parenting

plan that are not specifically governed by court order"); Okla.

Stat. Ann. tit. 43, § 120.3 (West 2003) ("The appointment of a

parenting coordinator shall not divest the court of its

exclusive jurisdiction to determine fundamental issues of

custody, visitation, and support, and the authority to exercise

management and control of the case"); S.D. Codified Laws § 25-4-

70 (2013) ("A parenting coordinator shall not have the authority

to make any decision affecting child support, a change of

custody, or a substantial change in parenting time"); Tex. Fam.
                                                                  33

Code Ann. § 153.606(c) (West 2009) ("The parenting coordinator

may not modify any order, judgment, or decree").

    Further, the Probate and Family Court may wish to consider

other issues such as the training, licensing, or monitoring of

parent coordinators, whether and how parents may file complaints

or seek removal of parent coordinators, confidentiality

policies, impartiality, and case screening procedures.    In so

doing, the Probate and Family Court may wish to draw on S.J.C.

Rule 1:18 in crafting a rule governing parent coordinators as

S.J.C. Rule 1:18 reflects many important limitations on the

authority of individuals who play a role in assisting litigating

parties in resolving their disputes out of court.   The court may

also wish to consider whether to propose an amendment to S.J.C.

Rule 1:18 recognizing parent coordination as a form of dispute

resolution services that may be covered by the rule.

Ultimately, the Probate and Family Court should be guided by the

boundaries on a judge's inherent authority referenced in this

opinion.

    We further acknowledge that parent coordination services

are being used with increasing frequency in Massachusetts and

that such services may provide an important benefit to families

and to the court system.   Therefore, nothing in this decision

should be construed to limit the ability of parties to agree to

use the services of a parent coordinator or for a judge to
                                                                  34

incorporate that agreement into a judgment of divorce or to

otherwise enforce the agreement using contract principles.

    5.   Conclusion.   The terms of the appointment of the parent

coordinator in this case exceed the bounds of the judge's

inherent authority, and the breadth of the order constitutes an

impermissible delegation of judicial decision-making authority.

Accordingly, we vacate the original order of appointment, the

clarified order, and the portion of the judgment issued

requiring the parties to comply with the order.

                                    So ordered.
