CFI vs. PRE

 

“The Child and Family Investigator In Colorado Family Law”

 

C.R.S §14-10-116.5 authorizes the Court to appoint a Child and Family Investigator upon request of one or both of the parties or the Court on its own. The CFI is the “investigative arm” of the Court and investigates, reports and makes recommendations to the Court in the child’s best interests.

 

The CFI’s investigation is limited in scope to the issues outlined in the Order Appointing the CFI. Unlike the Parental Responsibilities Evaluator (PRE), the CFI cannot conduct mental health/psychological or drug/alcohol testing and must instead report back to the Court and recommend any subsequent testing. The Chief Justice Directive 04-08, amended in 2011, now caps the CFI fees at $2000 absent extraordinary circumstances warranting costs above this fees cap.

 

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The CFI Statute:

14-10-116.5. Appointment in domestic relations cases – child and family investigator – disclosure

 

(1) The court may, upon the motion of either party or upon its own motion, appoint a neutral third person to serve the court as a child and family investigator pursuant to subsection (2) of this section in a domestic relations proceeding that involves allocation of parental responsibilities. The court shall set forth the specific duties of the child and family investigator in a written order of appointment. The same person may not serve as both the legal representative of the child pursuant to section 14-10-116 and as the child and family investigator for the court pursuant to this section. Within seven days after the appointment, the appointed person shall comply with the disclosure provisions of subsection (2.5) of this section.

 

(2) A child and family investigator appointed by the court may be an attorney, a mental health professional, or any other individual with appropriate training, qualifications, and an independent perspective acceptable to the court. The child and family investigator for the court shall investigate, report, and make recommendations as specifically directed by the court in the appointment order, taking into consideration the relevant factors for determining the best interests of the child as specified in section 14-10-124. The child and family investigator shall make independent and informed recommendations to the court, in the form of a written report filed with the court, unless otherwise ordered by the court. While the child and family investigator shall consider the wishes of the child, the child and family investigator need not adopt such wishes in making his or her recommendations to the court unless they serve the child’s best interests as described in section 14-10-124. The child’s wishes, if expressed, shall be disclosed in the child and family investigator’s written report. The child and family investigator may be called to testify as a witness regarding his or her recommendations. The child and family investigator shall comply with applicable provisions set forth in chief justice directives, and any other practice or ethical standards established by rule, statute, or licensing board that regulates the child and family investigator.

 

(2.5) (a) Within seven days after his or her appointment, the appointed person shall disclose to each party, attorneys of record, and the court any familial, financial, or social relationship that the appointed person has or has had with the child, either party, the attorneys of record, or the judicial officer and, if a relationship exists, the nature of the relationship.

 

(b) Based on the disclosure required pursuant to paragraph (a) of this subsection (2.5), the court may, in its discretion, terminate the appointment and appoint a different person in the proceedings. A party has seven days from the date of the disclosure to object to the appointment based upon information contained in the disclosure. If a party objects to the appointment, the court shall appoint a different person or confirm the appointment within seven days after the date of the party’s objection. If no party timely objects to the appointment, then the appointment is deemed confirmed.

 

(3) (a) The court shall enter an order for costs, fees, and disbursements in favor of the child and family investigator appointed pursuant to subsection (1) of this section. The order shall be made against any or all of the parties; except that, if the responsible parties are determined to be indigent, the costs, fees, and disbursements shall be borne by the state.

 

(b) In a proceeding for dissolution of marriage or legal separation, prior to the entry of a decree of dissolution or legal separation, the court shall not enter an order requiring the state to bear the costs, fees, or disbursements related to the appointment of a child and family investigator unless both parties are determined to be indigent after considering the combined income and assets of the parties.

 

(c) If the appointment of a child and family investigator occurs in a case involving unmarried parties, including those proceedings that occur after the entry of a decree for dissolution of marriage or of legal separation, the court shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state.

 

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The Parental Responsibilities Evaluator

 

C.R.S §14-10-127 authorizes the Court to appoint a mental health expert to perform a parental responsibilities evaluation (PRE). This evaluation is a comprehensive investigation and involves psychological testing (which may include Minnesota Multiphasic Personality Inventory-2 (MMPI-2),Millon Clinical Multiaxial Inventory (MCMI-III), and?Parent Awareness Skills Survey (PASS). Parenting assessments, custody assessments, and through collateral interviews should all be part of a PRE evaluation. Unfortunately, as is the case with lawyers, some are more thorough than others and many don’t “get it” despite thorough client and case preparation.

 

The PRE’s report will include recommendations for the allocation of parental responsibilities under C.R.S. §14-10-124 (1.5)(a)(best interests of child for purposes of parenting time) andC.R.S. §14-10-124 (1.5)(b)(best interests of child for purposes of decision-making). The cost of a PRE Evaluation and Report vary from $3000 to tens of thousands of dollars and are generally reserved for higher conflict cases, for obvious reasons.

 

The PRE Statute:

14-10-127. Evaluation and reports – disclosure

 

(1) (a) (I) In all proceedings concerning the allocation of parental responsibilities with respect to a child, the court may, upon motion of either party or upon its own motion, order any county or district social services department or a licensed mental health professional qualified pursuant to subsection (4) of this section to perform an evaluation and file a written report concerning the disputed issues relating to the allocation of parental responsibilities for the child, unless such motion by either party is made for the purpose of delaying the proceedings. Any court or social services department personnel appointed by the court to do such evaluation shall be qualified pursuant to subsection (4) of this section. When a mental health professional performs the evaluation, the court shall appoint or approve the selection of the mental health professional. Within seven days after the appointment, the evaluator shall comply with the disclosure provisions of subsection (1.2) of this section. The court shall, at the time of the appointment of the evaluator, order one or more of the parties to deposit a reasonable sum with the court to pay the cost of the evaluation. The court may order the reasonable charge for such evaluation and report to be assessed as costs between the parties at the time the evaluation is completed.

 

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(I.3) In determining whether to order an evaluation pursuant to this section, in addition to any other considerations the court deems relevant, the court shall consider:

 

(A) Whether an investigation by a child and family investigator pursuant to section 14-10-116.5 would be sufficient or appropriate given the scope or nature of the disputed issues relating to the allocation of parental responsibilities for the child;

 

(B) Whether an evaluation pursuant to this section is necessary to assist the court in determining the best interests of the child; and

 

(C) Whether involving the child in an evaluation pursuant to this section is in the best interests of the child.

 

(I.5) A party may request a supplemental evaluation to the evaluation ordered pursuant to subparagraph (I) of this paragraph (a). The court shall appoint another mental health professional to perform the supplemental evaluation at the initial expense of the moving party. The person appointed to perform the supplemental evaluation shall comply with the disclosure provisions of subsection (1.2) of this section. The court shall not order a supplemental evaluation if it determines that any of the following applies, based on motion and supporting affidavits:

 

(A) Such motion is interposed for purposes of delay;

 

(B) A party objects, and the party who objects or the child has a physical or mental condition that would make it harmful for such party or the child to participate in the supplemental evaluation

 

(C) The purpose of such motion is to harass or oppress the other party;

 

(D) The moving party has failed or refused to cooperate with the first evaluation;

 

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(E) The weight of the evidence other than the evaluation concerning the allocation of parental responsibilities or parenting time by the mental health professional demonstrates that a second evaluation would not be of benefit to the court in determining the allocation of parental responsibilities and parenting time; or

 

(F) In addition to the evaluation ordered pursuant to subparagraph (I) of this paragraph (a), there has been an investigation and report prepared by a child and family investigator pursuant to section 14-10-116.5, and the court finds that a supplemental evaluation concerning parental responsibilities will not serve the best interests of the child.

 

(II) Each party and the child shall cooperate in the supplemental evaluation. If the court finds that the supplemental evaluation was necessary and materially assisted the court, the court may order the costs of such supplemental evaluation to be assessed as costs between the parties. Except as otherwise provided in this section, such report shall be considered confidential and shall not be available for public inspection unless by order of court. The cost of each probation department or department of human services evaluation shall be based on an ability to pay and shall be assessed as part of the costs of the action or proceeding, and, upon receipt of such sum by the clerk of court, it shall be transmitted to the department or agency performing the evaluation.

 

(b) The person signing a report or evaluation and supervising its preparation shall be a licensed mental health professional. The mental health professional may have associates or persons working under him or her who are unlicensed.

 

(1.2) (a) Within seven days after his or her appointment, the evaluator shall disclose to each party, attorneys of record, and the court any familial, financial, or social relationship that the evaluator has or has had with the child, either party, the attorneys of record, or the judicial officer and, if a relationship exists, the nature of the relationship.

 

(b) Based on the disclosure required pursuant to paragraph (a) of this subsection (1.2), the court may, in its discretion, terminate the appointment and appoint a different evaluator in the proceedings. A party has seven days from the date of the disclosure to object to the appointment based upon information contained in the disclosure. If a party objects to the appointment, the court shall appoint a different person or confirm the appointment within seven days after the date of the party’s objection. If no party timely objects to the appointment, then the appointment is deemed confirmed.

 

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(2) In preparing the report concerning a child, the evaluator may consult any person who may have information about the child and the child’s potential parenting arrangements. Upon order of the court, the evaluator may refer the child to other professional personnel for diagnosis. The evaluator may consult with and obtain information from medical, mental health, educational, or other expert persons who have served the child in the past without obtaining the consent of the parent or the person allocated parental responsibilities for the child; but the child’s consent must be obtained if the child has reached the age of fifteen years unless the court finds that the child lacks mental capacity to consent. If the requirements of subsections (3) to (7) of this section are fulfilled, the evaluator’s report may be received in evidence at the hearing.

 

(3) The evaluator shall mail the report to the court and to counsel and to any party not represented by counsel at least twenty-one days prior to the hearing. The evaluator shall make available to counsel and to any party not represented by counsel his or her file of underlying data and reports, complete texts of diagnostic reports made to the evaluator pursuant to the provisions of subsections (2), (5), and (6) of this section, and the names and addresses of all persons whom the evaluator has consulted. Any party to the proceeding may call the evaluator and any person with whom the evaluator has consulted for cross-examination. No party may waive his or her right of cross-examination prior to the hearing.

 

(4) A person shall not be allowed to testify regarding a parental responsibilities or parenting time evaluation that the person has performed pursuant to this section unless the court finds that the person is qualified as competent, by training and experience, in the areas of:

 

(a) The effects of divorce and remarriage on children, adults, and families;

 

(b) Appropriate parenting techniques;

 

(c) Child development, including cognitive, personality, emotional, and psychological development;

 

(d) Child and adult psychopathology;

 

(e) Applicable clinical assessment techniques; and

 

(f) Applicable legal and ethical requirements of parental responsibilities evaluation.

 

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(5) If evaluation is indicated in an area which is beyond the training or experience of the evaluator, the evaluator shall consult with a mental health professional qualified by training or experience in that area. Such areas may include, but are not limited to, domestic violence, child abuse, alcohol or substance abuse, or psychological testing.

 

(6) (a) A mental health professional may make specific recommendations when the mental health professional has interviewed and assessed all parties to the dispute, assessed the quality of the relationship, or the potential for establishing a quality relationship, between the child and each of the parties, and had access to pertinent information from outside sources.

 

(b) A mental health professional may make recommendations even though all parties and the child have not been evaluated by the same mental health professional in the following circumstances if the mental health professional states with particularity in his or her opinion the limitations of his or her findings and recommendations:

 

(I) Any of the parties reside outside Colorado and it would not be feasible for all parties and the child to be evaluated by the same mental health professional; or

 

(II) One party refuses or is unable to cooperate with the court-ordered evaluation; or

 

(III) The mental health professional is a member of a team of professionals that performed the evaluation and is presenting recommendations of the team that has interviewed and assessed all parties to the dispute.

 

(7) (a) A written report of the evaluation shall be provided to the court and to the parties pursuant to subsection (3) of this section.

 

(b) The report of the evaluation shall include, but need not be limited to, the following information:

 

(I) A description of the procedures employed during the evaluation;

 

(II) A report of the data collected;

 

(III) A conclusion that explains how the resulting recommendations were reached from the data collected, with specific reference to criteria listed in section 14-10-124 (1.5), and, if applicable, to the criteria listed in section 14-10-131, and their relationship to the results of the evaluation;

 

(IV) Recommendations concerning the allocation of parental responsibilities for the child, including decision-making responsibility, parenting time, and other considerations; and

 

(V) An explanation of any limitations in the evaluations or any reservations regarding the resulting recommendations.

 

(8) All evaluations and reports, including but not limited to supplemental evaluations and related medical and mental health information, that are submitted to the court pursuant to this section shall be deemed confidential without the necessity of filing a motion to seal or otherwise limit access to the court file under the Colorado rules of civil procedure. An evaluation or report that is deemed confidential under this subsection (8) shall not be made available for public inspection without an order of the court authorizing public inspection.

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CFI v. PRE: What are the Issues?

Too often attorneys escalate cases by getting the CFI/PRE involved early on without even knowing what the issues are, they don’t confer with opposing counsel, and they use the CFI/PRE as a weapon rather than a resource. And more often than not it backfires on their client.

 

Your lawyer needs to understand the dynamics of the parties, the temperament of the children, and the tendencies of the CFI/PRE for a particular situation. This firm doesn’t “expert shop.” We don’t pick “Father-friendly” or “Mother-friendly” experts and certainly do not expose children to intrusive and emotionally-challenging investigations as part of a strategy (this is the one time we don’t use strategy in our process). And we don’t tolerate those attorneys who do.

 

Personally, I am a huge fan of both CFIs and PREs as a resource after a thorough evaluation of the underlying facts of the case. Choosing the expert is not the same thing as having the Court appoint the expert that you want! Knowledge of the experts throughout Colorado is absolutely critical, as is knowing their tendencies and reputations for effective investigations, producing accurate reports and ability to withstand cross-examination on the witness stand.

 

I feel this investigative process is the most critical stage of any case involving children. We thoroughly prepare our clients before the investigation and ensure they have every possible collateral support available to them well ahead of time. By doing so we are able to identify issues, address them beforehand, and assist our clients in being thoroughly prepared for the most important “interview” they will ever have.

 

Burnham Law is committed to protecting you and your family. Period.

 

Call Now To Speak With Colorado Family Lawyers: (303) 990-5308