Here is an example of the circumstances where the law has now become unclear:

Lets say that Bobby had been residing primarily with mom and now that he is 15 years of age, both parents have agreed to let him live primarily with Dad.

So, Bobby goes to live with Dad. Dad makes significantly more money than Mom and has been paying Mom child support since their divorce. Mom agrees that since Bobby is now primarily with Dad that he can stop paying her child support. Dad stops paying child support as soon as Bobby begins to live with him. They have a verbal agreement that Mom will not have to pay child support. They do not make any changes with the Court.

Two years later, Mom has been promoted and is making more money. Dad files for a modification of child support with the Court. He states that Mom owes him child support and that she owes back child support from the day Bobby moved in. When the child support calculations are done, in fact, Mom does owe Dad child support. The question is whether she owes Dad from the day he filed his Motion to Modify (3 months ago) or if she owes back support from the day Bobby moved in with dad two years ago? Big difference for Mom.

A somewhat similar set of circumstances occurred in the recent Court of Appeals case “In re the Marriage of White and Martin, No. 09CA0596 (Div. VI, Court of Appeals, June 10th, 2010)”. In White, the Court held that the Mother had to pay from the date the Father filed his Motion to Modify, not from the date the child changed residences.

This opinion disagrees with a former Court of Appeals case, “In re Marriage of Emerson, 77 P.3d 923(Colo. App. 2003)”. In Emerson, the Court held that under Colorado Revised Statutes 14-10-122(5), if the parties agree to a change of physical custody, that the child support of the obligor under the existing child support order, is modified from the date when physical care was changed. The Court found that the Mother became obligated the moment custody changed and thus the statute applied.

In the White case, the Court found that the mother was not obligated to pay child support under the existing child support order. Only the Father was. So the statute did not apply to her under the clear language of the statute and the general rule that the change in child support only starts from the day the Motion to Modify is filed applies.

So, now we have two cases from the Colorado Court of Appeals that disagree. We will have to hear from the Colorado Supreme Court or from the Legislature to clear this up. In the mean time, one can argue either way.

On June 28th an Associated Press article came out that addressed the use of Social Networking material in divorce and child custody cases. Leslie and Ken Matthews were featured in the article discussing Social Networking posts as evidence. To read the article as published in USA Today click here.

Given the Social Networking craze that has evolved over the past few years, this is an important topic to address in the divorce and post decree context. Most people do not pay attention to their security settings on Facebook and other networking sites.

If your soon to be ex or your children or mutual friends see something on facebook that they think might be relevant in your divorce or child custody matter, they can get that information to your ex's attorney. Facebook pictures and statements are being used more and more to impeach testimony or as an admission against interest. The article cited above discusses a number of examples and here are a few more:

-- In a child custody case the mother states that the children should not spend overnights with the father because of his drinking habits. The father claims that he has quit drinking for some time. The wife discovers pictures and statements on his Facebook page showing him very obviously drunk and doing shots at a party the prior week.

-- A father claims that he does not have the income to provide the child support requested. Ex wife discovers pictures and statements on Facebook showing him taking the kids on flying lessons. Question: Where is the money coming from for flying lessons if you cannot pay your child support?

-- Wife claims that her husband is threatening her and that she needs a Protection Order. Evidence includes threatening emails as well as threats made on Facebook.

The point to be made here is that Facebook is not private and chances are good that if you are saying one thing in Court and the opposite on Facebook, you are going to find yourself caught in a difficult position.

Can a non-married man who is not the biological father of a child, establish the legal rights of a father? The answer in Colorado is yes, under certain circumstances.

Lets look at the facts from a recent Court of Appeals Case; In Re Parental Responsibilities of A.D., 09CA0756 (Colo. app. 4-1-2010):

Petitioner and Mother had a relationship that ended in 1999. Mother moved away and gave birth to the child in question in August of 2001. Mother and Petitioner reconciled and moved back in together when the child was 11 months old. They lived together as a family until January of 2007 when Mother broke off the relationship and moved in with her current husband. The child, then six years old, spent several overnights per week with the petitioner for approximately one year. In February of 2008, the Mother discontinued the child's contact with petitioner.

The Petitioner brought an action for Allocation of Parental Responsibilities, stating that he was both the presumed natural Father and that he also had standing to bring the case due to his contact and care of the child following the parties break up.

At trial the Petitioner admitted that he was not the biological father of the child. The alleged biological father was notified of the action but lived out of state and chose not to participate.

1. Presumed Natural Father
You may have heard that if you are married when a child is born to your wife, that, as the husband, you are presumed to be the natural Father. However there is also a lesser known provision that applies to a non-married male partner. Section 19-4-105(1)(d)of the Colorado Revised Statutes states " a man will be presumed to be the natural father of a child if he received the child, while a minor, into his home and openly held the child out as his natural child." This presumption may only be rebutted by clear and convincing evidence. The law also states that the presumption is rebutted by a court decree establishing paternity of the child by another man.

In this case the only other potential father was notified but chose not to participate in the action. The Appellate Court held that the Petitioner's admission that he is not the biological father does NOT NECESSARILY rebut the presumption that he is the natural parent when there is no Court Decree that establishes the paternity of another man.

2. Psychological Parent
There was a second legal argument in In Re Allocation of Parental Responsibilities of A.D. that the Court did not address since they found that the Petitioner was the presumed natural father and therefore had the legal rights of a father.

The second argument relates to establishing a relationship as a psychological parent. Colorado Revised Statutes, section 14-10-123(1)(c) states that a person other than a parent may bring an Allocation of Parental Responsibilities action if they have physical care of a child for six months or more, if the action is commenced within six months of the termination of such physical care.

In this case, the Petitioner had physical care of the child several overnights a week for a year following the break up. The Trial Court had found, by clear and convincing evidence, that Petitioner had standing to bring the Allocation action and that he and A.D. shared a preexisting bond of love and affection, that he was A.D.'s psychological parent, and that the child would face possible trauma if she lost all contact with him.

The Appellate Court did not rule on this issue, however, it does form the basis for a strong argument that, even if the Petitioner had not been found to be the presumed natural parent, that under 14-10-123(1)(c) he could establish parental rights. It is important to note that this section only applies because he spent significant independent time with the child after the couple broke up. If the Mother had cut off the relationship immediately when she left, this section would not have applied.

The point remains that the Colorado Courts are going to look at the best interests of the child and if there has been a parental relationship established over a significant period of time, the Court will look for ways to retain that relationship because it is in the best interests of the child. The statutes referenced above were both ways for the Court to give the non-biological but clearly the psychological parent legal rights.

If you would like to know more about how this case relates to your circumstances, feel free to call Matthews and Matthews at 303-329-3802 and ask for Leslie Matthews.

We often get calls from people that are planning to move to Colorado and they want to know if they can file for divorce right away.

Ninety Day Rule
Colorado law allows you to file for divorce once you have been domiciled in the state for 90 days.

The question then becomes; what do you have to do to establish domicile. Domicile and residency are pretty much synonymous. Both are determined by the intention of the individual in question. The Court will look to acts and other evidence to support such an intention.

For instance, if you rent and apartment or purchase a home and are living primarily in Colorado, you have a Colorado drivers license, your children are enrolled in school in Colorado. These are all indications of residency.

Once 90 days has passed, you may file for divorce. It is even possible, through case law, for someone not a citizen of the United States to be entitled to a decree of dissolution of marriage in the Colorado Courts if that person meets the resident/domiciliary requirements as set forth in the statute.

What about the other party that remains out of state. Does the Court have jurisdiction over him/her?
In order to get jurisdiction over the other party to the Dissolution of Marriage Action that party must have sufficient minimum contacts with the state. The following are ways that this minimum contact can be met:

1. Filing a joint Petition for Dissolution
2. By executing a waiver and acceptance of service by the out of state party
3. Personally serve the out of state party while they are in Colorado
4. Engaging in sexual intercourse with the out of state party within the State of Colorado if there is a paternity suit or a claim for child support.
5. If the party owns real estate in Colorado that is subject to the Dissolution Proceeding.
6. If there has been an act of domestic violence in the state
7. If there is a matrimonial domicile within the state
8. In a child custody proceeding, if Colorado is the home state of the child at the commencement of the proceeding.

It is important to speak to an attorney if you have questions about the Court's jurisdiction over the spouse who is not living in Colorado. You will need to look at all the facts to see if the Court in Colorado will have jurisdiction over the non-resident spouse.

In a typical Divorce matter, child custody is handled by the District Court that is handling all matters pertaining to the divorce. The District Court Judge is required to take action in the best interests of the children but does consider the interests of the parents as well. However, there are instances where the District Court looses it's jurisdiction over child custody. This occurs when there is a Dependency and Neglect Action (DNN) filed by the State regarding the child at issue in the Divorce matter. When this occurs, all child related issues including, parenting time, decision making and child support will be exclusively handled by the Juvenile Court system. The attorneys for the parents can continue to represent the parents in the Divorce matter in District Court and they can represent the parents in the DNN Juvenile matter but their ability to advocate for the parent regarding custody is significantly reduced once the custody issue has entered Juvenile Court.

The Juvenile Court, like the District Court, must do what is in the best interests of the children but their second priority is the interests of the state, not the parents. The Juvenile Court is charged with deciding if the child is "dependent" or "neglected". The focus of the Court on the parents is only as needed to decide the status of the child. There is little focus on the rights or needs of the parents except that re-unification of the children with the parents is a priority of the state because, if re-unification is possible, it is in the best interests of the child. However, even if the parent does everything they are asked to do by Social Services, there is no requirement to give the child back to the parent if the state believes that there is still a danger to the child. The State has the right to restrict parenting time as well as bring a relinquishment action to permanently remove all parental rights.

When the State Steps in
How does a Dependency and Neglect Action get started? There are certain individuals that are required by law to report possible child abuse or neglect to the state (Social Services) when they have a "reasonable cause to know or suspect that a child has been subjected to abuse or neglect or if they have observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect". There are a number of professionals that fall into this category. For the purposes of this blog entry I will only name a few key professions. They include, therapists, doctors, public or private school officials (teachers) or employees, police officers and clergy members, child and family investigators, Veterinarians and animal protection officers. (You can see a full list in Colorado Revised Civil Statutes, Section 19-3-304)

Examples
So, if your child goes to her teacher and tells the teacher that her father inappropriately touched her or beat her or if the child looks significantly neglected, that teacher is required to report these facts to social services. The same would be true if a child revealed information to a therapist that lead the therapist to reasonably believe that the child was being abused or neglected. Another example is if the police are called during a domestic dispute and they find that there are conditions at the home that make it unsafe for the children. I have seen this happen when the police find the mother severely intoxicated or find drug paraphernalia in the home or find sanitary conditions that are at the level of being unsafe conditions for the children. The police are obligated to report a reasonable belief that the children are unsafe by reason of abuse or neglect. Another possibility is that during the Divorce action, a Child and Family Investigator is appointed by the Court to develop a custody recommendation and during their investigation, perhaps in speaking with the child or with a third party, or just in viewing the parents home, develops a reasonable suspicion that there is child abuse or neglect. The Child and Family investigator is obligated to report their concerns to social services immediately.

Different ways the State can step in

Informal Adjustment
Once there has been a report to Social Services, there is usually a Social Services investigation. The investigator can recommend an Informal Adjustment which means that Social Services is going to try to intervene without bringing a formal DNN case. If this is the case, the District Court should be able to maintain their jurisdiction in the case and the Juvenile Court will not get involved. If this occurs, my recommendation is to do everything that Social Services asks for to avoid having the case be brought in Juvenile Court. Perhaps, in working with Social Services the parents can stipulate to a custody settlement in District Court that incorporates the Social Services plan but also considers the needs of the parents.

Bringing a DNN Action
Social Services can decide following their initial investigation to bring a Dependency and Neglect action (DNN). Once this occurs, the custody matter will completely handled by the Juvenile Court inside of the DNN action. The State will have a great deal of control and power in the case. There will be a Guardian Ad Litem assigned to represent the child's interests and The County attorney will represent the State's interests. The Respondents are usually one or both parents and the parent's interests are the lowest priority of the Court.

Records from a DNN Action
If you are in a Divorce action in District Court and there has been a prior DNN action and you want records from that action to use in the Divorce action you may find it difficult to get access to those records. The policy is that the parties to a DNN action need to be able to do their treatment plan to re-unify the family without the fear of records being used against them. So as an attorney for the Mother in a Divorce Action, I would be able to get the records in the DNN that pertain to Mom but I would not be able to get the results of the father's psychological evaluation or the child's evaluation from the DNN Case.

Summary
If a DNN action is brought, you and your attorney will loose quite a bit of control over the disposition of Custody issues. You will be relying on the state to investigate and propose solutions. In this case it is best to cooperate with Social Services. However, If you feel abuse or neglect is occurring when your child is with the other parent, then perhaps a DNN case is warranted. You may want to have your child work with a therapist to get to the facts surrounding what occurs at the other parents home. In any event, it is important to understand that there is a distinct difference in how the custody case proceeds if it is removed to the Juvenile Court by a DNN petition.

In their recent book "In the Name of the Child" Janet R. Johnston and Vivienne Roseby, (recognized domestic violence experts here in the Colorado legal community), recognize three types of domestic violence:
1. Physical Assault including pushing, slapping, choking, hitting etc... or the use of a weapon, sexual assault, unlawful entry or the infliction of physical injury or death.
2. Intimidation: Psychological intimidation and control that includes stalking, threats to hurt or abduct children, threats to hurt others, violence against pets, destruction of property, isolation from friends and family, lack of access to marital resources such as money. and
3. Emotional Abuse: Psychologically damaging acts inflicted within the relationship such as name calling, put downs, undermining the victim's self esteem. The experts state that this type of emotional abuse is dysregulating to the victim and is often more pervasive and more psychologically damaging to the parent than physical abuse.

Colorado Courts recognize the premise that children that are exposed to domestic violence are directly damaged by the experience even though it does not directly involve them. Johnston and Roseby describe this phenomena by stating that the perceived threat of danger or death of the caregiver is not limited to physical violence. Children know when their caregivers are in a state of anxiety, fear, rage or dissociation. The child's brain literally mirrors the parent's nervous system arousal and the child literally and physically experiences the parent's state of being, the trauma state as well as the aggressor's rage state. This is very damaging to the child in both the short and the long term.

For this reason, Colorado has laws that allow Judges wide discretion when there is evidence of domestic violence to provide protection to the victim as well as adapt parenting time to assure that the children are not exposed to domestic violence.

There are a number of avenues available to the victim of domestic violence in a custody matter.

There are three legal avenues to take. The first is Criminal Charges, the second is a Dependency and Neglect Action and the third is the Family Law Domestic Court System.

1. Criminal Charges: If domestic abuse has occured in front of the children and the police are called and criminal charges filed, then the district attorney is going to decide weather or not to bring a no contact order before the Court under criminal laws that would prevent the perpetrator from having any contact with the victim or the children.

2. Dependency and Neglect Proceeding: To bring a Dependency and Neglect action, Social Services would have to be involved. This is a quasi criminal matter brought by the state and in many cases of D&N domestic abuse, drug or alcohol abuse is also involved. The Court in a Dependency and Neglect action has the power to remove the children and place them with relatives or in foster care. The Court also has the power to terminate parental rights of one or both parents if it is warranted under the circumstances.

3. Domestic/Family Law Civil Court: This is the Court where you would file for a divorce or file for an allocation of parental rights if you are not married.

-- Temporary Protection Orders: The Civil Court can order a temporary or permanent protection order even if there is no divorce or custody matter pending. To get a Temporary Restraining Order you can go to the Civil Court in your County and show the Court that you believe there is a threat of imminent harm. Soon afterwards there will be a Permanent Protection Order Hearing held and the perpetrator will have a chance to defend themselves against your allegations. The Temporary Protection Order you receive will be extended, made permanent or dismissed. The Protection Order can extend to your children. If you have already filed for divorce or allocation of parental responsibilities you can ask for the Temporary Protection Order in the same court that is handling your divorce or child custody matter. Also, if a Temporary or Permanent Protection Order has been issued and you subsequently file for divorce, the law requires that notice of prior protection orders must be disclosed in the Petition for Dissolution of Marriage. This allows the Court to be aware that there are domestic violence issues in the case and promts them to send out a notice concerning domestic violence counseling and a request to obtain support services for the children.

-- Automatic Temporary Injunction: When you file for divorce in Colorado an Automatic Temporary Injunction goes into effect as soon as the opposing party is served. Under this injuction both parties are enjoined from molesting or disturbing the peace of the other party. The police are required to use every reasonable means to enforce this part of the injunction. So, if you have a pending divorce action and your spouse is "disturbing your peace" you can call the police and they will have to enforce the injuction. Just make sure that you have a copy of your Petition for Dissolution of Marriage with you. Disturbing the peace is a lower bar than domestic violence.

-- Temporary Orders: Temporary Orders Hearings occur when the parties cannot agree on how to handle financial and child related matters during the pendency of the divorce. These hearings usually occur within three or so months from the date of the Petition for Dissolution being filed. At this Hearing the Court can specifically order that one party not disturb the peace of the other party or of any child. The Court can order that one party be exluded from the family home or home of the other party upon a showing that physical or emotional harm would otherwise result. The Court may order a Temporary or Permanent Protection Order. Other issues are also addressed such as who will pay what bills and temporary child support and/or maintenance can be ordered.

-- Permanent Orders: This is the final Hearing before the Court if the parties cannot come to an agreement. At this hearing parenting time and decision making regarding the child will be decided. The Courts in Colorado recognize the damage to children that domestic violence causes. They also must weigh the fact that it tends to be in the best interest of children to have contact with both parents. The Court does have the discresion to not order any parenting time with a parent if, after a hearing, the court finds that the parenting time would endanger the child's health or significantly impair the child's emotional development. The Court is required, however to look first for the least detrimental alternative to ending all contact beween a parent and a child. As for decision making, if there has been domestic violence, the presumption is that the parents cannot make decisions together and sole decision making will be seriously considered in most cases. The Court will also refrain from ordering mediation between the parties if there has been evidence of domestic violence.

When people go through a divorce, especially when there are children involved, there is almost always a strong emotional component. How could there not be. Research shows that divorce is right up there with a death in the immediate family as one of life's most stressful times.

The legal process in Colorado is set up to deal with two major issues. The splitting up of the marital estate and financial support as needed on the marital side and doing what is in the best interests of the children when dealing with parental responsibilities. The court system is actually set up to avoid emotional issues between husband and wife. This is a no fault divorce state and the only wrongdoing that is considered by the court is financial wrongdoing or endangerment due to domestic or child related violence or endangerment to the childs emotional development.

When you are going through the divorce process there is quite a bit of work to do to gather all of the financial information needed and to make decisions on what you are asking for in terms of division of property and debts, maintenance if warrented, child support and parenting time. It is easy for emotional issues, though completely normal, to get in the way of clear and wise decision making in a divorce case.

In most cases, your attorney is not the best resource equipped to deal with the emotional blocks that might arise for people during the process. Some people just need to talk it through. You can do this with your attorney but for a much larger fee than a divorce coach or therapist and perhaps with not as much expertise. Some people find it very hard to get the financial information together. Often times there is an emotional block at play that shows up as procrastination but the attorney ends up spending time working through the issue with the client.

We have found that even in the most emotionally difficult divorce situations that the addition of a coach or therapist to collaborate with can make all the difference in decreasing legal fees and making good and clear decisions in the divorce process.

Our firm uses a form that allows the coach/therapist to collborate with the attorney without loosing attorney/client privilege or therapist/client privilidge. The collaboration usually goes no further than letting the coach know what is coming up during the divorce process and what some of the emotional blocks might be to making good decisions. The coach/therapist is then left to decide the best course of action to support our mutual client in moving past the emotional block and making the best decisions for themselves and their family. With this support most clients are able to use their attorney wisely, spend considerably less on legal fees and end up making good long term decisions.

Here at Matthews & Matthews we receive a number of calls each month from people who are looking to change parenting time or decision making after final orders have been entered by the Court.

Changing Parenting Time or Decision Making does require returning to Court unless the parents can come to an agreement regarding the change.

Best Interest of the Child Standard
There are two ways a court will look at a request to change parenting arrangements. If the non-residential parent (the parent with the least parenting time) is asking to increase their time with the child the Court will look at the request from the perspective of what is in the "best interest" of the child.

Endangerment Standard
However, if the parent requesting the change is looking to restrict the other parent's time with the child or they are asking to change the residential parent (the parent with the majority of the time), the the Court will use a much higher standard of review. The Court will only agree to the requested change if there is sufficient evidence of endangerment to the child's physical health or emotional development.

If you are dealing with a physical danger like neglect or physical or sexual abuse, the evidence required is clear, however, endangerment to emotional development remains a grey area.

Endangerment to Emotional Development
Cases of endangerment to emotional development tend to require expert testimony. There is a line between bad parenting and "endangerment to emotional development". Expert testimony by a therapist who has evaluated the child will assist the court in determining if that line has been crossed. Factors to consider beyond the evidence supporting the alleged parental behavior include risk and resiliency factors concerning the child.

In a case where endangerment to emotional development is alleged, either parent or the Court may request that a Child and Family Investigator be appointed. However, due to the unclear nature of emotional endangerment, it may be wise to have the child evaluated by a professional with specific expertise in children's emotional issues within the family system like a licenced Marriage and Family Therapist.

Evaluating the child when you have joint decision making
In the case of parents with joint decision making this can be a problem in that the accused parent might not agree to the evaluation of the child. However, there are often provisions in the parenting plan that allows one parent to get medical attention in the case of an emergency without the consent of the other parent. You would have to look at the circumstances of the particular case to determine if the emergency provision would apply to evaluating the child for the purposes of determining endangerment to emotional development. This decision should be discussed with legal counsel before proceeding.

Colorado Case Law on Emotional Endangerment
There are a few Colorado Appellate Court cases that have ruled on what constitutes endangerment to emotional development. The facts of every case are different but the following situations provide some guidance on what a Court will consider endangerment to emotional development:

1. Parental Alienation when well documented with expert testimony.
2. Father's reluctance to recognize child's problems and inability to work with mother in addressing those problems.
3. Where record revealed abundant evidence that children feared mother's new husband would sexually molest them.
4. Religious beliefs when the evidence showed such beliefs or practices were reasonably likely to cause present or future harm to physical or mental development of the child.

Currently in Colorado we have many parents that are in the military reserves. Unlike the regular military, these parents may or may not be called into active service and if they are, the service will be temporary and any orders for deployment will be considered interim.

So, lets say that Sally is the the Army Reserves and she has the majority of parenting time for her three year old son. Sally is called up for active duty and sent to Afghanistan under a one year interim order. Sally then asks her ex-husband Joe if he will take care of their son while she is away and Joe agrees.

When Sally returns at the end of her tour of duty (all in one piece; thank god), she is expecting to get her son back but Joe has decided to bring a motion to modify parenting time stating that his son has been voluntarily integrated into his household over the past year and it is in the childs best interests to stay with him. He is asking to now be the parent with the majority of the parenting time (residential parent).

Normally speaking, if Sally had voluntarily given all parenting time of her three year old son to her ex-husband Joe for one year, he would have a right under CRS 14-10-129 to ask for a modification of parenting time. However, under a recently legislated statute; CRS 14.10-131.3 Sally now has special protection as a military reservist.

CRS 14.10-131.3 Protection for Military Reserve Parents went into effect on August 5th, 2008. Here is the relevant information:

1. You must be a member of the Military Reserves (not the regular military)
2. An agreement to temporary modification of parenting time while deployed does NOT constitute consent to integration of the child into the household of the other parent for purposes of a motion to modify primary residential parent or decision making.
3. Even if there is an interim court order for modification of parenting time during the reservist's absence, that order will be automatically vacated and the original parenting plan put back in place upon the reservists return.
4. This statute doe not prevent orders for modification based on reasons other than deployment.

So, in Sally's case. The Court would reference CRS 14.10-131.3 and deny the motion to modify parenting time because it was soley based on Sally's deployment to Afghanistan. Now that she is back, the original parenting plan goes back into effect.

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.