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.

Happy Holidays Everyone!
I know for many people who are contemplating divorce that the holiday season can be very trying and I imagine that if you are a therapist you are very busy helping people through this time.  In fact, statistically, most people wait until the holidays are complete before they move forward with a divorce.  Understandably so.

New Need for 2012 custody cases 
However, I expect that in January, as in all prior years, there will be a large number of people calling who want to begin the divorce process.  This year there will be a new issue facing parents that are divorcing who cannot agree on parenting time schedules and decision making processes.  In the past, they would typically hire a CFI, (Child and Family Investigator) to assess the situation and make a report to the court on what parenting plan they see is in the best interests of the children.  Given the changes to the CFI rules, this general evaluation is no longer possible.  The new rules require that CFI's do narrow, fact based investigations only, with no analysis of the parent's abilities or psychological issues.  There is also a $2,000.00 cap on CFI investigations and reports to assure that they are not broad or too in-depth.  Many CFI's have said they will no longer do this work due to the financial cap.

So, if parents need a full child custody assessment the only other court ordered option available is what is called a Parenting Responsibilities Evaluation (PRE).  This can only be done by a licensed professional therapist (CFI's can be done by attorneys or non-licensed individuals).  In the past PRE's were VERY in depth and often cost more than $10,000.00 and were most often done by PhD's when there were allegations of parental psychological or addiction issues.   This is why CFI evaluations had become the primary custody evaluation tool for middle income parents.  As you can see, this creates a major gap in what is available in court ordered child custody evaluations.

New Opportunity to fill the GAP
For 2012 we are going to need a new form of a Parental Responsibilities Evaluation.  One that can fill the gap left by the narrowing of CFI investigations.  We need a PRE that is somewhat abridged, deals with the specific issues at hand, assesses the family dynamics, includes psychological analysis as needed and one that can be done for a reasonable fee.  This would be a breakthrough for our legal system in that it assures that you are using a licensed professional therapist for evaluating parental abilities and recommending a parenting plan while also making it affordable to the average parent.

Who can fill this gap?
Here are the qualifications for a Parental Responsibilities Evaluator:

1. A licensed Mental Health Professional who is competent by training and experience in the following:
• The effects of divorce and re-marriage on children, adults and families.
• Appropriate parenting techniques
• Child and Adult Psychopathology
• Applicable clinical assessment techniques
• Legal and ethical requirements of a PRE

It seems to me that you do not need to have a PhD to fulfill on these qualifications.  Depending on your specialty, I think that a good number of licensed professional therapists can fit well into these qualifications.

I believe that it is time to create an evaluation service/ tool that makes PRE's viable for the middle class divorce client.  As a family law attorney, I am VERY interested in seeing this developed and I am open to collaborating with therapists that wish to understand what attorney's and parents need to fill the parental evaluation GAP.  Please feel free to get in touch with me at leslie@matthewslaw.com to discuss this opportunity.  I also intend to put together a round table discussion on this topic in the beginning of 2012.  I will let you know on this blog and on our website at matthewslaw.com when it is scheduled.

I do not want to discourage people from continuing work as a CFI.  There is certainly still a need for CFI work.  It will be more narrowly defined by the court and will not go over $2,000 in fees but there will be a higher volume available since many former CFI's will no longer be participating.  The cap also makes CFI investigations available to people on tighter budgets.

I believe that the changes in the CFI rules have presented an opportunity to re-evaluate what is really needed in a full custody evaluation and how it can be done at a reasonable cost.  I am hopeful that the present GAP will be filled with something better than what our system has had in the past and something that will serve children and their best interests in these difficult situations.

Please forward this discussion to any licensed therapist you know who might be interested in designing a great evaluation process for divorcing families who need help deciding what parenting plan is best for their children.

Leslie Matthews

Reported In The Denver Post:
The Denver Post reported last Sunday, December 5th, 2010 that Parental Alienation Syndrome (PAS) is being considered for inclusion in the fifth edition of the 2012 Diagnostic and Statistical Manual of Mental Disorders (DSM).  The DSM is updated every decade or so and is a therapist's official catalog of mental disorders.

Emotional Damage to Children:
Experts state that when you look at the emotional damage done to children by alienation, it's really striking.  The children in such situations suffer tremendously, writes Reena Sommer, an authority on PAS.  Such children are made to feel their love and attachment for one parent is contingent on their abandoning the other.

PAS perpetrated by Men and Women:
Women used to be thought of as the main perpetrators of parental alienation, but no longer says Judith Ray, a licensed family therapist in Colorado Springs.  Those men tend to be narcissistic, characterized by a sense of entitlement, arrogance and low empathy.  Female alienators often have borderline personalities, marked by insecurity, neediness, a strong fear of abandonment and chronic emptiness.

The Denver Post looked at both sides of the issue and concluded that studies documenting PAS's long term damage make it clear that it belongs in this all-important catalog of officially recognized  mental disorders.

Inclusion in the DSM will support evidence in custody cases:
If PAS makes it into the 2012 edition of the DSM, it will only reinforce and strengthen evidence brought of Parental Alienation in child custody disputes in Colorado.  Evidence of PAS  has been used in Colorado family law cases for a number of years.  Inclusion in the DSM will enable therapists to testify that a child has an official diagnosis of PAS and a treatment plan can be recommended to the Court.  This takes alienation out of the realm of fairness between the parents and places it on solid ground as a concern for the best interests of the child's mental health and emotional development.

Heavy burden of proof to change primary parent:
In Colorado, if you are trying to change primary custody from one parent to the other, you have an uphill battle.  The standard to change primary custody is "does the present custody situation endanger the child's physical well being or endanger their emotional development".  This is a much higher standard than "the best interests of the child" standard used to assess initial parenting plans in a divorce.   Inclusion of Parental Alienation Syndrome in the DSM will provide parents the opportunity to bring evidence of damage to the children because of PAS.  This evidence could help to support meeting the burden of proving endangerment to the child's emotional development.

Time will tell how this change in the DSM will effect the results in custody disputes involving PAS.  In this attorney's opinion, the change can only increase the chances of being able to develop Court Ordered therapeutic interventions to support the healing process needed when children have been exposed to severe parental alienation.

Reported In The Denver Post:
The Denver Post reported last Sunday, December 5th, 2010 that Parental Alienation Syndrome (PAS) is being considered for inclusion in the fifth edition of the 2012 Diagnostic and Statistical Manual of Mental Disorders (DSM).  The DSM is updated every decade or so and is a therapist's official catalog of mental disorders.

Emotional Damage to Children:
Experts state that when you look at the emotional damage done to children by alienation, it's really striking.  The children in such situations suffer tremendously, writes Reena Sommer, an authority on PAS.  Such children are made to feel their love and attachment for one parent is contingent on their abandoning the other.

PAS perpetrated by Men and Women:
Women used to be thought of as the main perpetrators of parental alienation, but no longer says Judith Ray, a licensed family therapist in Colorado Springs.  Those men tend to be narcissistic, characterized by a sense of entitlement, arrogance and low empathy.  Female alienators often have borderline personalities, marked by insecurity, neediness, a strong fear of abandonment and chronic emptiness.

The Denver Post looked at both sides of the issue and concluded that studies documenting PAS's long term damage make it clear that it belongs in this all-important catalog of officially recognized  mental disorders.

Inclusion in the DSM will support evidence in custody cases:
If PAS makes it into the 2012 edition of the DSM, it will only reinforce and strengthen evidence brought of Parental Alienation in child custody disputes in Colorado.  Evidence of PAS  has been used in Colorado family law cases for a number of years.  Inclusion in the DSM will enable therapists to testify that a child has an official diagnosis of PAS and a treatment plan can be recommended to the Court.  This takes alienation out of the realm of fairness between the parents and places it on solid ground as a concern for the best interests of the child's mental health and emotional development.

Heavy burden of proof to change primary parent:
In Colorado, if you are trying to change primary custody from one parent to the other, you have an uphill battle.  The standard to change primary custody is "does the present custody situation endanger the child's physical well being or endanger their emotional development".  This is a much higher standard than "the best interests of the child" standard used to assess initial parenting plans in a divorce.   Inclusion of Parental Alienation Syndrome in the DSM will provide parents the opportunity to bring evidence of damage to the children because of PAS.  This evidence could help to support meeting the burden of proving endangerment to the child's emotional development.

Time will tell how this change in the DSM will effect the results in custody disputes involving PAS.  In this attorney's opinion, the change can only increase the chances of being able to develop Court Ordered therapeutic interventions to support the healing process needed when children have been exposed to severe parental alienation.

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.

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.

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.

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.

Lets say that you are divorced in one state and all issues regarding parental responsibilities (custody) have been adjudicated. You have been determined to be the primary parent and the Court is aware of your intention to move out of state with your child following the final divorce decree. You then move to Colorado.

Two years later you believe there is a need to alter the present parenting time arrangement. Can you file for a Modification of Parenting Time here in Colorado where you now reside or do you need to file back in the state where the original orders were issued along with your divorce decree?

The question is: Which state has jurisdiction to modify the original parenting plan? The state that issued the original orders or the state where you and your child currently reside?

The answer is: It Depends on a few factors

1. First, does the other parent still live in the original state? If the child, the child's parents or any person acting as a parent no longer reside in the original state, then that state no longer has jurisdiction. So, if both parents and the child have moved out of the original state, you could file for Modification in Colorado because you and the child have resided in Colorado for over 6 months and Colorado would have jurisdiction.

2. What if the other parent still lives in the original state? Then the question becomes more complex. The original state will retain jurisdiction if one of the parents still resides there AND there is a "significant connection" with the state AND "substantial evidence is available in the state concerning the child's care, protection, training and personal relationships".

3. What this means is that you will have to file your Motion for Modification back in the original state where you got your divorce OR you will have to file a Motion asking the original state to find a lack of exclusive and continuing Jurisdiction. Under Colorado law, if one of the parents still lives in the original state, that state has to determine that jurisdiction no longer exists before Colorado will take the case. So, in either event you will have to hire an attorney back in the original state to deal with this if one parent still resides in the original state.

4. The Court in the original state will have to determine if there is a significant connection with the state in order to maintain it's jurisdiction. It may be enough that the parent who still lives in the original state has significant visitation with the child in that state. Colorado law states that if the relationship between the child and the person remaining in the original state becomes so attenuated that the Court could no longer find significant connections and substantial evidence, then jurisdiction would no longer exist. You could certainly make this argument if the child was not spending any time in the original state. Upon this finding, the Court in the original state would hold that they no longer had jurisdiction and Colorado could then take your Motion to Modify Parenting Time.

5. So, the bottom line is that if one of the parents still lives in the original state, you are going to have to deal with the court system of that state before you are able to bring a modification action in Colorado.