CAMFT Annual Meeting
This past week I had the privilege of speaking to the Colorado Association of Marriage and Family Therapists at their annual meeting.  Part of my presentation was to give them an update on the work we are involved with in addressing the gap in parental evaluation services since the CFI rule changes went into effect last year.  For those of you that could not attend the CAMFT meeting, I would like to update you here.  Please refer to my last blog post for a full explanation of the current gap in affordable parental evaluation services.

The Problem
As described in our blog post in December, 2011, we have developed a significant gap in the availability of court appointed evaluators for the middle class parent is divorcing and who cannot come to an agreement on parenting time or decision making.  There is now a $2,000 cap on fees for a Child and Family Investigator and Parental Evaluators fees have historically been to high for the middle class parent. (Typically over $10,000.00).

The New Possibility!
Since my last blog in December of 2011, we have taken steps to use this breakdown in the system to allow for a re-look at the current process used to do a Parental Responsibilities Evaluation.  I invited a group of therapists from different backgrounds to come together to look at the current PRE process, look at what works and what does not work about the process and then to start from a blank sheet of paper to see if the process could simultaneously be improved upon and cost less.

The group included 6 therapists including one PsyD, one PhD. (a clinical professor at of Psychology at CSU), three LMFT's including Lisa Thomas, a past CAMFT president and Amy Maddox, also a former member of the CAMFT executive council. We also had a member who has a masters in Social Work and myself as the legal representative on the team.

Currently in the Testing Phase
The result of the work done by this group is a newly designed process titled PRE21 or a Parental Responsibilities Evaluation for the 21st century.  I could not be more excited about the possibility that this new process represents for middle class parents in need of parental evaluation services.  We are now in the testing stage.  Once the process has been fully tested we will present to groups and provide training opportunities.

Please feel free to give me a call at 303-329-3802 if you would like to discuss the PRE21 process in more detail and I will be sure to update you all as the process unfolds.

• Examine the most effective, efficient and economical process for training and continuing education for CFI’s
• Establish protocols that require criminal background checks for all CFI’s and require CFI’s to report violations of the law and professional disciplinary actions or lawsuits filed against them.
• Explore how to establish a statewide list and how to work with local district courts to identify and appoint CFI’s who are qualified and acceptable to the court.
• Improve the process by which a complaint about a CFI is made and considered by the court.

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.

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.

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 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.

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.

A Child and Family Investigator (CFI) can be one of the most important people in a child custody matter before a Colorado Court. The report submitted by the CFI is often relied on heavily by the Judge who is looking for an objective source of information about child custody issues.

The rules that must be followed by a CFI are found in Colorado Civil Statutes, Section 14-10-116.5 and are supplemented by the Chief Justice Directives that have been established for CFI's. Some of the pertinent rules to understand in dealing with a CFI are as follows:

1. A CFI can be appointed by a Motion of one of the parties to the custody matter or the Court can appoint a CFI on it's own motion.

2. There must be a written order by the Court appointing a CFI and setting forth the specific duties of that CFI. In setting forth these duties, the Court should provide for the least intrusive means of ascertaining the child's best interests.

3. The CFI must investigate, report and make recommendations in a written report to the Court. The CFI must be careful to assure both fairness and the appearance of fairness, allowing the parties relatively equal and comparable opportunities to present their perspectives. The CFI report is given to both parties and to the Court but the report is maintained under seal and is not a public record.

4. Who may the CFI speak with to investigate what parenting plan may be in the child's best interests? : The CFI may speak with the child's parents or any other person with relevant information including other family members, teachers or other caregivers. The Chief Justice directives include a standard Court Order that states, in part, under Responsibilities of the Parties, "The Parties shall sign any releases necessary to allow the CFI to properly conduct his/her investigation" This refers to medical personnel and therapists specifically. Therapists would normally not be able to talk to a CFI due to Therapist/client privilege. The Chief Justice Directives make it clear that they expect the parents to waive their privilege in writing so that their personal therapists or the child's therapist can speak to the CFI. The CFI can also speak to the child at issue in the custody case and can consider the wishes of the child but need not adopt such wishes in making recommendations. However, in their report, the CFI must outline the child's wishes as expressed.

5. The CFI's file is to be made available to to each party through their counsel after the CFI report has been filed. The CFI file must include the names and addresses of all persons with whom the CFI consulted unless the disclosure would endanger any person's welfare.

6. The CFI can be called as a witness at a custody hearing and can be subject to cross examination. Anyone the CFI has spoken with can also be called as a witness and cross examined although this does not happen frequently.

I cannot over emphasise how important the CFI is to the ultimate determination of parental rights and responsibilities in a custody matter. Suggesting a good CFI for your case is part of what an attorney should bring to the table as a valuable part of your representation. Given the weight of the CFI's opinion in the case it is important for everyone to cooperate and work effectively with the CFI including the client and all other possible people the CFI should be speaking with. The Attorney should be working directly with their client to assure that the CFI is informed of all relevant people and professionals to speak with and to assure that the CFI is following the Court Order and all Chief Justice Directives.