New Practices in Colorado Family Law: Early Neutral Evaluations
Friday, October 2nd, 2009
Early Neutral Evaluations have been part of Colorado law for some time as part of the Colorado Dispute Resolution Act 13-22-302 (2), however the Early Neutral Evaluation practice has only recently been adapted to family law cases and specifically to child custody cases.
Question:
How are Early Neutral Evaluations(ENE's) used in Child Custody matters?
Answer:
The ENE model works as follows: Early in the divorce process the parties meet with a team of two evaluators, one man and one woman, usually one is an attorney and the other a therapist. Both evaluators should have significant experience with child custody matters. The evaluators set up a three hour session where they meet with each party to hear their position and the concerns relating to parenting time and decision making that are causing conflict between them. Each side also shares their feelings and frustrations. After a few rounds back and forth with requests for more information and an opportunity for each party to address the concerns of the other, the evaluators then give their expert assessment of the case. The parties are provided feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full, court ordered parenting evaluation. The ENE evaluation team will then make settlement suggestions and assist in mediating a settlement if needed.
The purpose of Early Neutral Evaluations is to help parties reach an early settlement of their divorce or separation that satisfies both of their interests and benefits the children.
The Pro's:
If an ENE evaluation assists in coming to a settlement early in a child custody dispute, it can prevent a long and expensive custody fight between the parties and can allow for a much stronger foundation for a workable post divorce family. ENE's, like mediation, are confidential in that the evaluator cannot be called to court to testify. ENE's are specifically designed to allow for early settlements of disputes rather than serve as evidence gathering devices for trial. This way the parties have the freedom to communicate openly without concern of how it would show up later at trial. This makes authentic communication more likely and settlement more probable.
The State of Minnesota has been using ENE's in custody disputes for quite some time. One Minnasota divorce attorney, Gerald Williams, shares the following insight on his blog Minnesota Divorce and Family Law Blog; "ENE is an informal process, in which the parents are not "testifying" and are not under oath. So the evaluators' observations are only as good as the facts they get from the parents. In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations. The process bears out the fact that many, full blown custody evaluations reach the same conclusions that ENE evaluators reach during the three-hour session."
The Con's:
There have been some concerns expressed by the Colorado Psychological Association about the ability of the therapist involved in a ENE to gather sufficient data in the 3 hour session to give a valid opinion on child custody. Also, the parties are not under oath and there is no way to judge the veracity of what they are saying. See Ethical Considerations for Psychologists Involved in Early Neutral Assessments by Andrew Loizeaux, Psy.D. and Julie Van Heyningen, Psy.D.
There are two other forms of custody evaluations that are used by the court system to assist the judge in making child custody decisions. In both cases the evaluator speaks to the parties but also may speak to the children, other interested parties and therapists that have worked with the children and with the parents. So their reports are usually based on much larger quantities and perhaps more objective data. This type of reporting is done by Child and Family Investigators (CFI's) or Therapists doing court ordered Parental Evaluations. Parental Evaluations may also include data obtained through psycological testing. These reports are used by the court as evidence and the evaluators can be called to testify.
Conclusions:
ENE's are a great option if they assist in an early resolution to custody disputes but it is very important to understand their limitations. There is only so much evaluation that can occur in a three hour session where the evaluators are only talking to the parties and the parties are not under oath. However, much like mediation, perhaps what is really important is that the people with the custody dispute find common ground and that may ultimately outweigh the need for the full fledged evaluation that occurs through the court later on in the divorce case. After all, it is all about the future of how the family works together and if you can prevent the sometimes permanent fissures in relationship that can occur in a protracted custody fight, perhaps you have done what is best for the family as a whole.
Question:
How are Early Neutral Evaluations(ENE's) used in Child Custody matters?
Answer:
The ENE model works as follows: Early in the divorce process the parties meet with a team of two evaluators, one man and one woman, usually one is an attorney and the other a therapist. Both evaluators should have significant experience with child custody matters. The evaluators set up a three hour session where they meet with each party to hear their position and the concerns relating to parenting time and decision making that are causing conflict between them. Each side also shares their feelings and frustrations. After a few rounds back and forth with requests for more information and an opportunity for each party to address the concerns of the other, the evaluators then give their expert assessment of the case. The parties are provided feedback about the circumstances of the case and what would be a likely outcome if the case were to be subjected to a full, court ordered parenting evaluation. The ENE evaluation team will then make settlement suggestions and assist in mediating a settlement if needed.
The purpose of Early Neutral Evaluations is to help parties reach an early settlement of their divorce or separation that satisfies both of their interests and benefits the children.
The Pro's:
If an ENE evaluation assists in coming to a settlement early in a child custody dispute, it can prevent a long and expensive custody fight between the parties and can allow for a much stronger foundation for a workable post divorce family. ENE's, like mediation, are confidential in that the evaluator cannot be called to court to testify. ENE's are specifically designed to allow for early settlements of disputes rather than serve as evidence gathering devices for trial. This way the parties have the freedom to communicate openly without concern of how it would show up later at trial. This makes authentic communication more likely and settlement more probable.
The State of Minnesota has been using ENE's in custody disputes for quite some time. One Minnasota divorce attorney, Gerald Williams, shares the following insight on his blog Minnesota Divorce and Family Law Blog; "ENE is an informal process, in which the parents are not "testifying" and are not under oath. So the evaluators' observations are only as good as the facts they get from the parents. In most cases, the evaluators get an accurate enough understanding of the circumstances to make helpful observations and recommendations. The process bears out the fact that many, full blown custody evaluations reach the same conclusions that ENE evaluators reach during the three-hour session."
The Con's:
There have been some concerns expressed by the Colorado Psychological Association about the ability of the therapist involved in a ENE to gather sufficient data in the 3 hour session to give a valid opinion on child custody. Also, the parties are not under oath and there is no way to judge the veracity of what they are saying. See Ethical Considerations for Psychologists Involved in Early Neutral Assessments by Andrew Loizeaux, Psy.D. and Julie Van Heyningen, Psy.D.
There are two other forms of custody evaluations that are used by the court system to assist the judge in making child custody decisions. In both cases the evaluator speaks to the parties but also may speak to the children, other interested parties and therapists that have worked with the children and with the parents. So their reports are usually based on much larger quantities and perhaps more objective data. This type of reporting is done by Child and Family Investigators (CFI's) or Therapists doing court ordered Parental Evaluations. Parental Evaluations may also include data obtained through psycological testing. These reports are used by the court as evidence and the evaluators can be called to testify.
Conclusions:
ENE's are a great option if they assist in an early resolution to custody disputes but it is very important to understand their limitations. There is only so much evaluation that can occur in a three hour session where the evaluators are only talking to the parties and the parties are not under oath. However, much like mediation, perhaps what is really important is that the people with the custody dispute find common ground and that may ultimately outweigh the need for the full fledged evaluation that occurs through the court later on in the divorce case. After all, it is all about the future of how the family works together and if you can prevent the sometimes permanent fissures in relationship that can occur in a protracted custody fight, perhaps you have done what is best for the family as a whole.
