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A legal note from Marshal Willick about continuing pervasive problems in Nevada where Family Court involves Mental Health Professionals (“MHPs”), despite recent controlling authority intended to provide limits.

I. BACKGROUND OF CONTINUING PROBLEMS WITH MHPs

MHPs in Family Court have a lengthy and troublesome history. Legal Note No. 34 (“Shrinks Gone Wild,” February, 2011, posted at https://www.willicklawgroup.com/vol-34-shrinks-gone-wild/) addressed relocation (i.e., “move-away”) cases in which MHPs attempted to arrogate the judicial function for themselves, going beyond rendering a decision as to “psychological best interest” by attempting to tell judges how the ultimate decision should go – while not being aware of (or caring about) the relevant legal standards. The note lamented the “gross and pervasive failure of various mental health professionals to perceive and fill their proper place in the legal process.”

The problem was never just in relocation cases. Legal Note No. 51 (“Shrinks Gone Wild 2,” May, 2012, posted at https://www.willicklawgroup.com/vol-51-shrinks-gone-wild-2/) turned to the arrogance of parenting coordinators (“PCs”) who somehow concluded that they were free to subvert court orders, change custody, and even instruct people not to talk to their own lawyers.

That note focused on unwarranted delegation of judicial authority, and concluded that “lawyers, and especially judges, have been failing in their duty to ensure that the input of psychologists in court decisions is restricted to a correct and quite limited place in legal proceedings.” It noted that the problems identified were not isolated, and not just about a specific case, or a couple of rogue mental health professionals, but rather that they were endemic and could get adults, and children, injured or killed.

Nothing of consequence actually changed in Family Court after those notes. Some MHPs got together and decided that they would take the collective position that if they could not do as they pleased without all “restrictions” (such as being told to operate under court orders, the rules of court, and state law) that they would refuse to get involved in cases at all. That was the subject of Legal Note No. 55 (“Shrinks Gone Wild 3,” November, 2012, posted at https://www.willicklawgroup.com/vol-55-shrinks-gone-wild-3/), which also largely concerned PCs.

That note directed lawyers and judges to a corrected parenting coordinator appointment order that actually complies with due process and court rules (it is posted under the heading “Model Order for Appointment of Parenting Coordinator (draft),” at https://www.willicklawgroup.com/clark-county-bench-bar-committee).

The third note detailed the attempt by lawyers and judges to provide some modicum of legal training for MHPs, in the form of an all-day seminar put on to provide that education. Most MHPs ignored the seminar, and several were “offended” that they would be asked to restrict their actions to what was allowed by law.

Some of them were pretty strident. One made the audacious allegation that not giving PCs carte blanche authority to do whatever they want “runs counter to the practical role the PC is expected to undertake” – that’s code for “I want to do what I want to do and don’t want any silly judge telling me otherwise.” The MHP attacked the revised order for “taking away from the PC the power to make decisions.”

In a word – “DUH.” PCs are not supposed to “make decisions.” They are to assist parties with resolving their disputes, if possible, within the scope of the existing court orders, and if that proves impossible, to make recommendations for a change to those controlling orders. Any MHP who cannot function within that structure has no business being involved with the court system at all.

And good riddance. As stated in the 2012 Legal Note, “MHPs who refuse to conform their activities, actions, and reports to constitutional and legal limits should have no further interactions with the courts. Period. Training in basic legal and procedural limits should be a precondition to referral of any case from the court.”

The rest of that note proposed that lawyers (rather than MHPs) should be appointed as PCs wherever possible, observed that the so-called “approved list” from FMC is misleading and improper, and suggested that “outsourced custody evaluations” should be used more rarely, because of the “unsubstantiated drivel, hokum, and psychobabble dressed up like ‘expert testimony’” that they too often contain.

II. CURRENT DEVELOPMENTS – APPELLATE LEVEL

In Harrison v. Harrison, 132 Nev. ___, P. 3d ___ (Adv. Opn. 56, July 28, 2016), the Nevada Supreme Court addressed the topic of parenting coordinators and provided common sense direction on how to prevent abuses.

The parties entered into a custody agreement including a provision for a PC to resolve disputes and for the district court to enter an order specifying the PC’s role. The order “limited [the PCs authority] to resolving nonsubstantive issues, such as scheduling and travel issues, and did not extend to modifying the underlying custody arrangement.” It included “a procedure to object [to the PC’s recommendation] and seek the district court’s review.”

On appeal, the Court held that “[b]ecause the parenting coordinator’s authority was limited in scope and was subject to judicial review, there is no question that judicial integrity was preserved.”

Harrison thus provides guidance:

  • PCs provide a hybrid of mediation and arbitration services; their appointment is not authorized by statute but is defined by agreement between parties, a court order, or both.
  • Appointment of a PC is permissible as long as the PC is limited to resolving nonsubstantive issues that do not modify or alter the custodial arrangement so there is no “improper delegation” of judicial authority, and there is “a procedure to object [to the PC’s recommendation] and seek the district court’s review.”

III. CURRENT DEVELOPMENTS – TRIAL LEVEL

There has been extremely little done by the courts to improve the situation in the 5 years since they were addressed in the prior legal notes. And revelations made in a recent trial level case illustrates the continuing dangers.

The court appointed a MHP to act as a parenting coordinator. At the initial meeting with the parties, the MHP unilaterally changed the scope of the clearly-defined and limited authority granted by the court: the minutes from that meeting show the MHP describing the differences between the MHP’s “consent form” and the court order as mere “discrepancies,” when it was actually a broad expansion of alleged “authority.”

This is not an isolated instance. Shrinks Gone Wild 2 detailed two MHPs “professing to believe that if they get parties to agree to whatever they suggest, MHPs are not required to follow court orders.” Years later, the same problem, and worse, persists.

In the recent case, the MHP wrote that she would copy a parent on communications with the other parent “at her own discretion,” apparently mindless of court direction or the ethical and practical perils of ex parte communications.

This is not to say that a rule that “the MHP shall not engage in ex parte communications” will solve the problem. Rather, it is an example of the blithe indifference to court orders several MHPs have developed since being allowed to run unchecked through the family court system.

She “denied” a request by one of the parties to modify summer visitation, stating with no explanation, analysis, or citation that the proposed plan was “not in the best interest of the children” – without applying (or perhaps knowing of) the list of factors in NRS 125C.0035(4)(a-l) which must be examined in any “best interest” analysis.

Her actions also contravened the February, 2011, “Guidelines for the Practice of Parenting Coordination” approved by the American Psychological Association (“APA”) Council of Representatives. Guideline 2b states “PCs function in a specialized area in which their actions are generally governed by legal authority applicable to PCs (e.g., statutes, regulations, case law, and state and local court rules) as well as by legal authority used in the particular case or by the particular PC (e.g., court orders or private consent agreements). Thus, the PC needs to have adequate familiarity with the relevant legal terminology and authorities.”

In short, a MHP acting as a PC must learn the relevant law (and controlling orders), and apply it in making recommendations. Failure to do so is a violation of the assigned task.

But this MHP was just getting started. She also granted herself the authority to make binding “substantive” as well as “non-substantive” changes to the parent plan – in other words, to override court orders, further adding that “any changes made could only be modified by the Judge.” Not only did the MHP expand her own power to create “binding” quasi-orders, she also significantly reduced the amount of decision-making power held by the parents (in direct contravention of the public policy stated by the Nevada Supreme Court).

The MHP notified the attorneys on the case of “changes” she considered herself authorized to make to the court-ordered visitation, as if it were a normal action by a MHP. When confronted by counsel, the MHP further claimed that she had contacted the Court ex parte and received blessing to do as she wished.

That claim is unlikely to have been true. In the unlikely event that any sitting judge would be unwise enough to engage in the kind of communications that led to formal discipline in In re Fine, and did grant a PC such authority – ex parte and with no record – the incident would only highlight the necessity of a uniform judicial approach to the use of MHPs in family court.

Finally – and most shamelessly – the MHP attempted to implement a procedure the parties had to complete prior to filing a complaint against her with the state board or file a motion in court, involving the sending of a written complaint to the MHP and waiting 10 days for a response. If that did not satisfy the “grievance,” the parties then had “permission” to file a formal motion with the court. A party would only be “allowed” to file a complaint with the state board after the court issued an order.

The MHP’s exercise in arrogance was both unethical and most likely unlawful. No third party may restrict the ability of parties to file a motion the court. And the State of Nevada Board of Psychological Examiners website does not indicate that any barriers to submission of a complaint as to one of their members is permissible, either (a lawyer trying to set up such a procedure would be subject to discipline under the code of professional conduct).

The MHP’s obvious intent was to force parties to abandon their complaints without reporting them. That the MHP thought she has the authority to act as a “gatekeeper” to the state entity charged with protecting the parties from her own misconduct is mind-boggling, and provides a perfect example of the extent to which the MHP appointment system is broken.

IV. DEVELOPMENTS ELSEWHERE

Other States have reached other conclusions on this topic. In Yates v. Yates, 963 A.2d 535 (Penn. Super. 2008), a Pennsylvania court approved the appointment and work of a PC, but within five years the practice of appointing PCs was barred completely from the Pennsylvania court system.

Yates involved a PC who the trial court permitted to “resolve minor custody issues between the two high-conflict parents” while retaining “judicial review over the parenting coordinator’s decisions concerning the ancillary issues.”

As in the Harrison case in Nevada, a disgruntled parent appealed based on an assertion of improper judicial delegation, which the reviewing court eventually held to require “de novo review” by the trial court.

In 2013, however, ongoing complaints about PCs seeking to arrogate judicial authority led the Pennsylvania Supreme Court to modify its Rule 1915.11-1 so as to eliminate PCs entirely. That court could not have been much more clear:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on [May 23, 2013]. Local rules and administrative orders authorizing the appointment of parenting coordinators also shall be deemed vacated on the date this rule becomes effective.

The Pennsylvania experience serves as a warning to PCs in Nevada who just cannot seem to resist the urge to exceed their limited place in the process and attempt to usurp decision-making authority. If they keep it up, our Court may well revisit the allowance of such appointments in Harrison, find the risk to integrity of the judicial process too great, and ban such appointments entirely.

V. THE FMC “OUTSOURCE SERVICE PROVIDERS” LIST

The Clark County Family Mediation Center (“FMC”) has maintained a list of people – for a long time solely MHPs – which it billed as an “approved” list for appointment of PCs, custody evaluators, and other services. A copy can be found at https://www.willicklawgroup.com/clark-county-bench-bar-committee/.

The list now contains the names of potential PCs who are lawyers (listed as “JDs” rather than as “Esq.,” presumably to blend in better with the academic credentials of the MHPs on the FMC list).

This is not significant “progress,” however, as it is also reported that the only lawyers on this list are those who subjected themselves to the “mental health training” run by those MHPs.

The lawyers who attended indicated that the little law referenced was outdated, incorrect, or both, and had virtually nothing to do with fostering a sense of correct place and responsibility of PCs in the court process. The existing “training” is a recipe for doing precisely the wrong things.

The list was criticized in detail in Shrinks Gone Wild 2 in 2012, and the criticism remains true today. That list is worse than a farce and risks making the lawyers and judges who rely on it complicit in any resulting harm that befalls innocent parties.

The underlying problem is the stubborn sentiment in FMC and the local MHP community that they “know better than the law” what to do relating to children. They need to get over that concept, immediately and permanently. The “training” that should be required by the judges before appointing anyone as a PC is basic legal training, like that in the curriculum we developed and presented back in 2012 – which should be presented by lawyers and judges, not MHPs. Those materials are posted at https://www.willicklawgroup.com/legal-parameters-for-forensic-service-providers/.

The current “grandfathered” provider list should be discontinued immediately. Those that successfully take an appropriate legal training course should be able to get on a subsequent list of potential PCs, evaluators, etc. Any who refuse to get that training, or to heed it, or attempt to violate the limitations set out in Harrison, should be permanently barred from further participation in court-related custody matters.

This is where the judges need to protect the process by presenting corrective instruction to FMC – in their own interest, and in the public interest. Anything less is shirking their responsibility, and increasing the likelihood of a Pennsylvania-like ban, sooner or later.

VI. CONCLUSIONS AND RECOMMENDATIONS

Nevada – at least in Clark County – continues to have a serious problem with MHPs involved in the family court system. While many lawyers have stood on the sidelines shouting for the judiciary to act, the judges have done nothing, for years. As a result, MHPs have grown increasingly brazen in subverting judicial orders and the court process.

The Supreme Court has spoken – for now – to allow the practice of appointing a MHP as a PC, with limitations. The restrictions set out in Harrison are minimum requirements for a MHP to remain involved in court-related custody matters.

As one judge wisely suggested, every time a PC is appointed, there should be an immediate phone conference or in-person meeting of the judge, counsel, the PC, and the parties, on the record. At that initial meeting, the judge should set out expectations, roles, tasks, and address concerns. That initial meeting should result in less confusion and, hopefully, fewer motions.

If a PC refuses to abide by the limitations imposed by the case law and the court, they should be summarily dismissed and another PC appointed. If it turns out that only lawyers are willing and able to follow the law and judicial orders, then only lawyers should be PCs.

If the current level of outright defiance by the MHP community of the restrictions imposed by Harrison and court orders continues, then the Nevada Supreme Court should revisit the matter and follow the lead of Pennsylvania in banning the practice.

VII. QUOTES OF THE ISSUE

“Idleness is the parent of psychology.”
– Friedrich Nietzsche

“Freud: If it’s not one thing, it’s your mother.”
– Robin Williams

“Doctors are the same as lawyers; the only difference is that lawyers merely rob you, whereas doctors rob you and kill you too.”
– Anton Pavlovich Chekhov

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