Custody: Cfi’s and Pre’s

As a custody attorney in Denver, I have handled hundreds of child related divorce and custody cases over the years. Some have gone to trial, some have settled. One of the initial determinations a family law attorney in Colorado needs to make is whether a custody expert is needed for purposes of investigating and reporting to the court as to the best interest of the children.

The attorneys at Plog & Stein have almost always recommended the appointment of an expert in cases in which residential custody or visitation are a significant issue. Judges can’t go out into the real world to sit with families, interview children, or get a true feel for what is going on with a family. Fortunately, statute makes provisions for the appointment of such experts to help get to the bottom of what kids needs. In many instances, a well written expert report can ultimately lead to settlement of a divorce or custody case, thereby saving the parties time and money.

Pursuant to C.R.S. 14-10-116.5, at the request of either party, or upon its own, the court can appoint what is called a Child and Family Investigator, referred to by us attorneys as a CFI. A CFI is a neutral third person, generally with a mental health background or an attorney with specific training, who investigates all contested aspects of a custody battle, including those in a divorce, and makes written recommendations which are tendered to the court. The CFI will meet with parties and the children, separately and together, as well as talk to outside sources, such as friends, family members, teachers, etc. in arriving at their conclusions. Courts are extremely likely to adopt the major aspects of a CFI’s recommendations. As such, it is very important for your Denver family law attorney to be familiar with the array of CFI’s in the metro area in terms of knowing what they are looking for, there viewpoints on mothers and fathers, etc. If a CFI is appointed, the outcome of your custody battle largely rests in his or her hands. As such, it is extremely important for your Denver family law attorney to inform you regarding the process, the things to say, and the do’s and don’ts for dealing with this person. There is generally a charge for CFI’s, unless the court authorizes the state to pay due to indigency of the parties.

Until April 2011, CFI investigations ranged in cost from $2000 to as much as $10,000 or more. Staring in April 2011, the Colorado Chief Justice issued new guidelines or rules indicating that CFI fees would generally be capped at $2000. This is great from a monetary standpoint. However, the fee cap, coupled with a loss of quasi-judicial immunity, led to a mass exodus of some very experienced and qualified CFI’s from the ranks of those continuing to do investigations. There are still some good ones left. Qualified mental health CFI’s used to be able to also do psychological testing (which in my opinion was rarely helpful), today they are not. If a person with money did not like the results of a CFI investigation, he or she might ask the court for the subsequent appointment of a Parental Responsibilities Evaluator, PRE to us lawyers.

As indicated above, PRE’s used to be sought generally after one party or the other did not like a CFI report. With the April 2011 changes to the CFI rules, many of the mental health professionals formerly doing CFI work are now exlusively doing PRE evaluations. Parental Responsibility Evaluations are authorized pursuant to C.R.S. 14-10-127. Unless a court finds specifically that the PRE is sought for purposes of delay, it must grant a request for a PRE. A PRE is generally a heightened CFI investigation, which can include psychological testing. Attorneys are not doing PRE’s, just mental health workers who are qualified. As they are more indepth than CFI investigations can now be, PRE’s may be a good thing and the new way to go. The problem is that most evaluators want between $5000 to $10,000 down to get started. The average person cannot afford this.

Sadly, the April 2011 changes in the rules may lead to only the wealthy being able to afford a truly qualified expert on their cases. In turn, I fear this will lead to more cases that might have settled going to contested hearings. This will further lead to more back log in the court system, which is already slow in many counties.

It has not been uncommon for the Denver divorce attorneys at Plog & Stein, P.C. to see cases with both a CFI and a PRE. At that point, it truly becomes a battle of the experts. Again, it is important for your attorney to be familiar with CFI’s and PRE’s in the Denver area, including how your specific judge might view this person. There are good experts and bad experts. My goal is to try to match my clients with the best fit for their cases, in terms of quality, viewpoints, and cost. A CFI or PRE can be a very effective tool for litigating your custody case.