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Parenting coordinators help ease custody conflicts. One is accused of more harm than good.

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Who decides which weekends Dad has custody? Or whether Mom's friend can pick up the child. What about where the kid will spend Christmas this year?

Answering these and other questions are ideally spelled out in a parenting plan, agreed to by parents who have split up. In highly contentious cases, some courts will appoint a parenting coordinator to serve as a neutral party.

The Las Cruces Sun-News uncovered the case of one parenting coordinator in particular who has drawn numerous complaints from parents who have worked with him.

Harold W. Smith, founder of Daybreak Life Coaching in Las Cruces, has been appointed to dozens of domestic cases, charging an hourly rate of $150 — three times the rate of his life-coaching fees. 

While there is no official roster of parenting coordinators in New Mexico, other practitioners in New Mexico's Third Judicial District, including a handful who have also instructed seminars on parenting coordination, are attorneys or licensed social workers.

For this story, the Sun-News pored through hundreds of pages of court documents in eight unrelated cases in which Smith acted as a parenting coordinator in southern New Mexico.

Attorneys and parents generally declined to be interviewed on record out of concern for ongoing cases, which can continue for years.

Smith has not responded to multiple requests for interviews, and has hidden his professional website from public view since being contacted by a reporter.

Multiple attorneys have petitioned to remove Smith, alleging he exacerbates rather than soothes conflict while collecting hefty fees. He has also been accused of exceeding the boundaries expected of his role and becoming a participant in conflicts between parents. 

New Mexico’s Third Judicial District Court.
New Mexico’s Third Judicial District Court. Third Judicial District Court

For example, in June Smith was removed from a custody case between Shannon Davis and Jose Ontiveros.

In June 2019, Davis and Ontiveros were "persistently in conflict with one another," according to a court order from New Mexico 12th District Judge Angie Schneider. The order appointed Smith to serve "as an arm of the Court" in order to implement a parenting plan for the welfare of their son, who was 2 years old. 

A year later, however, with reportedly no parenting plan in place, Smith was removed from the case in an Otero County District Court hearing for which Smith declined to appear. 

Ontiveros submitted a 49-page motion requesting Smith be removed, questioning Smith's qualifications under the court order as well as his billing practices, alleged partiality toward the mother and numerous complaints regarding Smith's professional conduct and reported personal hostility.

Smith opted not to call in to the remotely conducted hearing, claiming Ontiveros owed him money. Davis opposed removing Smith, saying she was happy with his services, but Smith sent word that he wished to be taken off the case.

Ontiveros' attorney, Freda McSwane, told Domestic Relations Hearing Officer Ellen Jessen that Smith refused to appear unless he was paid $1,200 — in addition to the $1,000 retainers he had been paid by both parents. 

McSwane, who has served as a parenting coordinator herself in unrelated cases, said such a demand for payment before making a court appearance was unusual.

Parenting coordinators largely unregulated in New Mexico

Parenting coordinators largely unregulated in New Mexico

Parenting coordinating emerged in the late 1990s. While parenting coordinators have been appointed in jurisdictions throughout Europe and Canada as well as the United States, only 13 states have passed specific legislation regarding the practice. 

They have grown in popularity as a way to manage disputes out of court and reduce legal costs, setting ground rules for communication between separated parents and helping to navigate questions about shared time, school work and discipline as collaboratively as possible.

New Mexico law gives judges latitude to use "auxiliary services" in custody cases, to appoint experts and set procedures for dispute resolution.

Qualifications and guidelines for parenting coordinators are not defined by statute, however, and the law does not define the scope of what parenting coordinators may do.

Similarly, parenting coordinators are not addressed by the state's administrative code or regulation and licensing department.

A screenshot from the website for Harold W. Smith's life coaching business, Daybreak Life Coaching LLC. The website was made private in July 2020.
A screenshot from the website for Harold W. Smith's life coaching business, Daybreak Life Coaching LLC. The website was made private in July 2020. Screenshot

Moreover, there is no licensing board defining and enforcing qualifications or rules for parenting coordinators, although the Association of Family and Conciliation Courts has published recommended professional guidelines.

Among its recommendations, the AFCC encourages courts "to establish a means for confirming the qualifications and training of mental health and legal professionals seeking to be appointed as PCs (parenting coordinators). This information should be available for review by parents and lawyers considering a PC."

Yet none of the New Mexico's 13 judicial districts have formal policies or guidelines qualifying parenting coordinators, and most told the Sun-News they utilize licensed mediators or therapists where applicable. 

Moreover, judges vary in the powers they have granted to Smith. Orders by Schneider as well as Third District Judge Mary Rosner grant Smith quasi-judicial authority, including immunity from lawsuits; whereas an order by Third District Judge Lisa Schultz in a different case specifically states: "The Parenting Coordinator is not an 'arm of the Court'" and that there is "no confidential relationship between the Parenting Coordinator and Parties with regard to the Parties, their attorneys and the court." 

The Third District said that in the absence of legislation or licensing authority, judges may consider an individual's "experience, temperament, educational background, and therapeutic training." 

The court's Attorney Supervisor, Heather Cosentino Chavez, wrote that judges consider the AFCC's guidelines. She also pointed to a two-day Continuing Legal Education course on parenting coordinators the court hosted in October 2019. 

Among the course instructors was Harold Smith. 

Questions about Smith’s qualifications

Questions about Smith’s qualifications

Smith stated in court filings that he has served as a parenting coordinator since 2017.

In November of that year, Rosner included Smith among a handful of recommended parenting coordinators to Yolanda Salazar and Ernesto Soto. 

Both parties were required to pay Smith a retainer. Soto paid $1,250 up front and was later billed an additional $1,000. 

Soto's attorney, Anna Farrell, filed a motion on July 14 seeking Smith's removal from the case. She argued that Smith was unqualified, that his appointment was invalid from the beginning and that his contract with the parties was fraudulent. 

According to the motion, Rosner initially highlighted Smith despite being "brand new" to the practice, having recently completed a two-day training course under Rosner's supervision, and assured the parents Smith had been "a social worker all his life."

In fact, Smith holds an interdisciplinary Ph.D. from New Mexico State University but has never claimed to be a licensed therapist or social worker. 

Yet Rosner placed him "in a quasi-judicial role to act as an arm of the court," with immunity from lawsuits, similar to the protections offered special masters or guardians ad litem. 

Moreover, there is no official record that Rosner ever extended Smith's original 12-month term as parenting coordinator, which would have expired in November 2018, although Smith claimed in an email to Rosner that she had granted an extension. 

‘Don’t tell me how to do my job’

‘Don’t tell me how to do my job’

The court order directed Smith to follow AFCC guidelines for parenting coordinators. However, those guidelines state: "A PC shall be a licensed mental health or family law professional, or a certified, qualified or regulated family mediator, under the rules or laws of their jurisdiction." 

According to records filed with Soto's motion, Smith completed a 40-hour family meditation course at the University of New Mexico, but that was in 2019 — after he had been assigned to Soto's case for 16 months. 

And according to a law professor at UNM, that doesn't make Smith a certified mediator. 

In highly contentious custody cases, some courts will appoint a parenting coordinator to serve as a neutral party.
Illustration by Andrea Brunty/USA TODAY Network, and Getty Images

In an email to Farrell, professor Laura Bassein wrote that there are “no credentialing or certification of mediators in New Mexico. Mediators may receive a paper certificate of completion of a mediation course, but that is very different from a certification as a mediator. Such credentialing or certification of mediators does exist in other states, but not New Mexico.”

Soto alleged that Smith was personally biased against him, arbitrarily limited their communications and engaged in retaliation when questioned by Soto.

In May 2019, Smith (who is not a therapist) filed a memo in court alleging Soto exhibited "signs of extreme paranoia and psychotic disorder." The following day, Rosner signed an order limiting Soto to supervised visits with his son at Smith's direction.

More than a year later, Soto said he has yet to be granted a visit.

He claimed in court filings that the only communication he has had with Smith in that time was when Smith billed him. He alleged that on June 22, after asking Smith about the lack of communication and when he could see his son, Smith retorted: "Don't tell me how to do my job." 

Smith’s adult home license revoked in Oregon

Smith’s adult home license revoked in Oregon

Smith may not hold a professional license currently, but his website reports that he previously ran a state-licensed elder care home in Oregon.

In 2004, the Oregon Department of Human Services revoked that license.

The official notice, obtained by the Sun-News, substantiated numerous complaints of improper handling of residents' medications, failing to dispose of medications or maintain proper records, and false signatures on medical visitation forms. 

Oregon investigators in 2003 also substantiated multiple complaints of verbal abuse and patient neglect against Smith, all of which he denied.

The revocation notice indicates Smith opted to sell the foster home rather than face a hearing. 

A Google street view image at the address shows the name "Harold W. Smith" still on the mailbox

Questions on Smith’s billing, communications

Questions on Smith’s billing, communications

AFCC guidelines encourage parenting coordinators to "communicate with all parties, counsel, children, and the court in a manner which preserves the integrity of the parenting coordination process."

Yet when Ontiveros' attorney inquired about Smith's invoices, Smith's responses were resistant and angry.

Last December, McSwane contacted Smith by email saying he had yet to meet with her client after nearly six months on the case, and asked for a detailed list of his contacts with Davis as well as Ontiveros. She also asked why Smith had requested a visit to Ontiveros' home. 

In an emailed response the following day, Smith refused to answer either question, stating, "It is not my practice to communicate with attorneys outside of court proceedings" and insisting he had met with Ontiveros "at my office on two separate occasions." 

In court, McSwane said that she billed her client for 12 minutes of time for that email exchange, while Smith charged him for two hours. 

"He told my client he had to think about it for a really long time, and that’s why there was a two-hour charge — because he was thinking about it," McSwane told the hearing officer. 

In February, after Ontiveros questioned an invoice demanding $183.29, Smith wrote to Ontiveros that he was required to maintain a balance with Smith's office, and that he actually owed more than $430. 

"It is your prerogative to dispute your bill," Smith wrote, "but please understand you will be charged for every minute of time it takes to re-address each of your issues. … Your attorney sent multiple emails to me and I answered them over the course of several hours in one day with follow-up on subsequent occasions."

Davis and Ontiveros agreed to communicate with each other and Smith via the Our Family Wizard mobile app, but Ontiveros complained that Smith stopped using the platform and switched to private text messages because Ontiveros had given his attorney access. 

Smith responded in an interim status report that the platform was "a tool for building healthy communication between parents with a history of conflict," and that he had encouraged Davis to stop using it as long as McSwane had access.

Davis' attorney said in court that her client was satisfied with Smith's services, but that Smith had emailed both parties to say he wished to be removed from the case. The half-hour hearing concluded when Jessen agreed to remove Smith.

That meant numerous allegations about Smith made in the filing were not aired in court, including affidavits by four Doña Ana County women who had petitioned to remove Smith from their own cases. 

Affidavits question Smith as parent coordinator 

Affidavits question Smith as parent coordinator 

The affidavits each accuse Smith of retaliatory behavior, emotional abuse, partiality toward one party over the other, among other complaints.

"A PC shall maintain impartiality in the process of parenting coordination, although a PC is not neutral regarding the outcome of particular decisions," the AFCC states in its guidelines for parenting coordinators. "Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual."

Yet Victoria Frietze reported in her affidavit that Smith exceeded his authority by testifying on behalf of her ex in a hearing over a stalking complaint that did not involve her children; and that Smith accused her in court of making a false police report although he had not been a witness to the incident.

Frietze said Smith had expanded his role from facilitating communication between parents to "acting as an investigator, defense attorney, and spokesperson" for her ex. 

The official business address for Harold W. Smith's Daybreak Life Coaching instead shows A New Beginning Custom Homes. Pictured in Las Cruces on Thursday, July 9, 2020.
The official business address for Harold W. Smith's Daybreak Life Coaching instead shows A New Beginning Custom Homes. Pictured in Las Cruces on Thursday, July 9, 2020. Nathan J Fish/Sun-News

In another affidavit, Danica Fifer said that Smith met with her at a restaurant rather than a private office to discuss parent time-sharing arrangements. When she asked questions about scheduling and which relatives and non-relatives would be permitted to transport her child, Smith allegedly raised his voice in anger at her, causing other patrons to turn and look at them. 

It is not clear that Smith even maintains a professional office.

State records indicate Smith incorporated Daybreak Life Coaching in 2017. His letterhead and website list an address near downtown Las Cruces where there is no sign of an office maintained by him. In court documents, a post office box in the neighboring town of Mesilla is listed as a point of contact for Smith.

Grandparents filed civil complaint against Smith

Grandparents filed civil complaint against Smith

In 2019, a civil complaint over Smith's billing practices was dismissed in Doña Ana Magistrate Court thanks to one of Rosner's orders granting him legal immunity.

Derek and Cindy Bailey of Las Cruces retained Smith, paying him $1,500 up front in January in a case involving their grandchild. Smith was to evaluate their role as intervenors in a dispute between the child's parents. The grandparents were not seeking custody, but visitation rights.

The records indicate each parent paid a $1,500 retainer and they were billed for an additional $1,400 between them. 

In August, Smith was removed from that case by Judge Rosner and ordered to return the unused portion of his retainer. Instead, the Baileys said they got a bill for $386 in addition to what they had already paid. 

They alleged Smith charged for work involving the parents rather than their role in the case. They also accused him of exaggerating time billed for exchanging text messages.

The invoice, included as an exhibit to their complaint, shows $450 dollars billed for text messages on two separate dates, for a period of 2.5 to 3.5 hours on each date. 

Meanwhile, invoices submitted to the child's parents indicate they were charged a flat monthly rate of $55 for text, email and phone communications, totaling $385 over seven months.

In court, the Baileys said that despite not being parties in the case, they had been billed for more money than one of the child's parents. 

However, the court order by which Rosner had appointed Smith again included language shielding him from liability. Smith also invoked court rules pertaining to guardians ad litem, arguing that any dispute over his fees needed to be heard in district court. 

Magistrate Judge Samantha Madrid dismissed the Baileys' complaint for lack of jurisdiction. To date, the couple have not pursued the matter in district court. 

‘His son’s life has been altered’

‘His son’s life has been altered’

Soto's motion argues that Smith's involvement in his case did not only cost him financially, but has also unnecessarily harmed his relationship with his son by sidelining him for more than year.

He is seeking not only Smith's removal as parenting coordinator and the cancellation of court orders relying on his reports, but also an end to Smith's immunity from legal liability. 

That means, Soto argues, that Rosner cannot rule impartially on the motion to remove Smith as parenting coordinator. 

In a separate motion filed on July 15, he seeks Rosner's recusal from the case, arguing that the judge is herself a witness as to why she recommended Smith, how she vetted him and why she granted him quasi-judicial authority, given his qualifications. 

As Soto's counsel, Farrell wrote in the motion:

"The arc of his son’s life has been altered, perhaps irrevocably, by the actions of a man who never should have been entrusted with such power."

Algernon D'Ammassa can be reached at 575-541-5451, or @AlgernonWrites on Twitter.

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