Child Custody: Using Court Appointed Parenting Experts

By: Curtis Wiberg

One of the most emotional issues in a contested Colorado divorce occurs when the parties do not agree on what parenting arrangements are in the best interests of the child/children. The concerns one parent may have about the other parent and how that concern affects the well-being of the children can be hard to prove to the Court. For these reasons, Colorado enacted two separate statutes authorizing a Court to appoint an expert to look into the family situation and make recommendations to the Court as to what is in a child’s best interest, both as to decision making (legal custody) and parenting time (visitation).

One statute (C.R.S. § 14-10-116.5) authorizes the appointment of a Child Family Investigator (CFI). In essence, a CFI is a neutral, third person charged with the duty of investigation the best interest of the children and submitting a written report, with recommendations, to the court. A CFI is often-times a lawyer, but sometimes a mental health professional. An advantage of using a CFI is the cost, as the fees are statutorily capped at $2,750, except in extraordinary circumstances, and are usually split between the parties. CFI’s can be used both before final orders and after, such as in a modification situation. In post-decree divorce cases or in custody cases, if one party is indigent, the Court can authorize the state to pay that person’s portion of the CFI’s fees. A CFI’s investigation usually involves interviewing each parent alone, a home visit with the parent and child/children, a review of the pleadings, an interview with the child if they are old enough, a review of any questionnaire the CFI provides the parent, and interviews with any collateral witnesses like extended family, teachers, or therapists. Directives prepared by the Colorado Supreme Court govern the conduct of the CFI to ensure an unbiased and thorough investigation that is well documented, among other things. The CFI then prepares a report of his or her findings and submits recommendations to the court on decision-making, parenting time, holiday parenting time, and if appropriate, recommendations for counseling or lifestyle changes for either or both parties.

The other statute (C.R.S. § 14-10-127) authorizes the appointment of a Parental Responsibilities Evaluator (PRE). A PRE is exclusively a mental health professional who is licensed to provide mental health assessments as part of the evaluation (or works with a mental health professional that can do a mental health testing). A PRE is able to perform all the functions and duties of a CFI. However, the appointment of a PRE is more appropriate in cases where one or both parties might have a more profound mental health or substance abuse issue. The disadvantage of a PRE is cost, as there is no cap on fees and the total cost of a PRE is likely to be $5000 to $10,000, or more. Still, the mental health testing component and the use of a mental health provider often adds insight to an investigation that a lawyer-trained CFI is not able to provide. Additionally, with no cap on costs, a PRE will have more ability to look at all of the proverbial stones that may need to be looked under, whereas a CFI may be unable to do as thorough or detailed a job. C.R.S. 14-10-127 also provides for a supplemental evaluation performed by a different evaluator, in instances in which one party may want to challenge the findings of the initial PRE. Statute indicates that a request for a supplemental evaluation “shall” be granted unless certain conditions make the appointment of a supplemental evaluator inappropriate. This is important if a party believes the first PRE was not adequate or appropriate in how the evaluation was conducted.

When intricate issues tied into visitation or decision making are at hand, a PRE is generally going to be the most effective route in terms of compiling evidence needed for trial. Many CFI reports are thorough and excellent, so the savings on costs make a CFI more than sufficient. However, if your case has an especially troubling dynamic or issue, a PRE may be more appropriate despite the extra costs. Your family law attorney can help you determine which expert will be most effective in your case, mapped up with a reality check tied into your finances and those of the other party.

With both CFI’s and PRE’s, one of the key advantages, especially if the children are older, is that it gives the children a voice in the proceedings as their voice can be presented to the Court through the experts. Without an expert, unless the Court takes the unusual step of interviewing the children personally, the parents are precluded from just going into court and repeating what the children may have said due to hearsay rule. The CFI and PRE statutes allow the children’s voices to be heard through the expert, both in the written report and if called as a witness in Court. With a CFI or PRE, additional hearsay evidence may be admissible at hearing if it was relied on as part of the formulation of the expert’s opinion.

Another significant key to your case is having a Denver family lawyer who knows and has experience working with CFI’s and PRE’s in the metropolitan area, and who can identify a competent and experienced expert suitable to your individual case. When selecting a CFI or PRE, one must keep in mind that if the parties don’t agree upon a specific person, the court will choose. As such, it’s vital to have an attorney who knows the normal names and faces and who knows how to fight the expert-appointment battle.

Finally, while the judge in your case has the power and discretion to not accept the findings and recommendations of a CFI or PRE, the reality is that CFI’s and PRE’s hold a tremendous amount of influence over the result of a parenting dispute. In many cases, the appointment of a CFI or PRE is the most important event in a case involving children, and it is imperative that the proper expert be nominated to the Court for appointment. Even if your selected expert is not appointed by the court (meaning a different expert is chosen), I still make sure to inform each client regarding the process, what to say and not say, and how to put his or her best foot forward throughout the investigation. Courts are ninety percent likely to following the recommendations made. Therefore, the process is important at each juncture.