Colorado’s Flawed Child and Family Investigations: A Call for Reform
Bill J Fyfe, Ed D
a brief history
The problem with Child and Family Investigations (C.R.S. 126.96.36.199 [CFI]) has been the contradiction between statutory purpose and day-to-day legal practice. Chief Justice Directive 04-08 (CJD 04-08) notes that the purpose of CFI is to provide “a brief assessment that is non-intrusive, efficient, and cost effective.” Many view CFI as an extension of the guardian ad litem role: an information gathering role which has evolved into something more. But conflicted divorce can involve complex and shifting family dynamics which make it difficult to assess sufficiently without consideration of multiple factors. Still, the court needs to resolve such family disputes and often relies on the assistance of an informed opinion about family specific dynamics.
Over time, CFI became the predominant court ordered assessment in litigated divorce matters. As a result, such assessments went beyond the circumscribed scope intended under C.R.S. 14-10-116.5: a more efficient, cost effective and timely procedure. By the mid 2000’s, CFI were routinely appointed in complex cases better suited for Parental Responsibility Evaluations (C.R.S. 14-10-127, PRE). It is noted that PRE are in essence Forensic Mental Health Evaluations (FMHE) which, by all accounts, are comprehensive in nature. FMHE are well suited to the assessment of competency to stand trial, violence prediction and high conflict divorce matters.
The base of CFI providers included attorneys, various mental health professionals (MHP) and minimally trained citizen volunteers and the proliferation of CFI created an environment in which increased numbers of investigators around the state undertook family assessment work with varying levels of training, education and experience. This led to a wide variety of investigative approaches and reporting formats even though dissolution and post dissolution matters remain the most perplexing of psycho-legal challenges. Despite approach or format, assessment of these changing families needs to include sufficient data collection and analysis. Such assessments often expand beyond a specific presenting problem (school placement, medical care decision-making) given that recommendations in these areas cannot be accomplished without due consideration of related data.
As CFI increased, the court, attorneys, and MHP conflated CFI with PRE for three reasons: the increased availability of investigators, the habit of appointment, and growing concern by psychologists trained in FMHE that additional data (psychological assessment of the parents, extended record review) were needed in some CFI cases so as to formulate an opinion that could be helpful to the court. But the overarching and unacknowledged difficulty remained: delineating which cases were amendable to circumscribed assessment under C.R.S. 14-10-116.5 (CFI) and which were best suited for C.R.S. 14-10-127 (PRE).
Our failure to use CFI in limited circumstances ultimately gave rise to increased complaints by litigating parents. An unclear grievance path caused further difficulty. CJD 04-06 referred complaints to the Judicial Officer involved in the case. As part of their complaint, dissatisfied litigants often wanted the court to censure or restrict the CFI from practicing: a task judges were unwilling and/or unable to complete because they did not have authority to discipline professionals. This left dissatisfied litigants without recourse given that the Mental Health Act exempted court appointed MHP from Department of Regulatory Agencies (DORA) authority (C.R.S. 12-43-215 (7)). (Of note, this exemption was repealed effective July 2011.) In time, dissatisfied litigants organized and pressured the legislature to address their grievances. In January 2010, Colorado Supreme Court Chief Justice Mullarkey instructed the Supreme Court Standing Committee on Family Issues (SCFI) to address the problems with CFI.
After many months of study and professional input, SCFI made recommendations and in April 2011 the current Chief Justice issued CJD 04-08 addressing concerns about CFI. A clear regulatory and grievance path was established. While the SCFI report recommended judicial discretion in regards to CFI fees, CJD 04-08 essentially re-created a distinction between CFI and PRE by restricting fees to $2,000 per case. CJD 04-08 states that “CFI investigations are not, by definition, parental responsibility evaluations”. But the CJD 04-08 fails to articulate how and when such a distinction is made and offers a path-never-to-be-taken alternative to CFI’s: “In the event a CFI finds that a more comprehensive assessment is required, s/he can provide that recommendation to the court”.
Experienced FMHE’s are not likely to perform CFI in a severely capitated system. Psychologists have resigned from CFI panels and no longer provide CFI training services. But the system of credentialing and training CFI continues. While there are skilled master’s level and attorney evaluators who continue to do CFI, the problem of limiting the scope of CFI will not go away. In response to CJD 04-08, Parents United for Change, a citizens group, stated that “… recommending is for a Parental Responsibility Evaluator, a higher educated professional with specific expertise in family and child areas.”
In 2009 The Association of Family and Conciliation Courts (AFCC) developed Guidelines for Brief Focused Assessment (BFA). Similar to CFI, BFA was defined as limited to “… narrowly defined, issue-specific questions that arise in family court settings (page 2).” In contrast, PRE “… are designed to provide data on more broadly based questions about general family functioning and parental capacity that are not appropriate to the BFA model (page 4).” The guidelines further defined the circumscribed nature of BFA as a timely assessment designed to assist the court with “… interim family arrangements or to assess acute questions regarding individual or family problems, especially those related to time sensitive child safety issues (page 4).”
Unfortunately, the circumscribed nature of BFA is not how CFI works in Colorado. BFA answers the question in a specific manner – brief assessments are timely, address acute concerns, and produce interim recommendations. Of note, at a recent Metropolitan Denver Interdisciplinary Committee (MDIC) luncheon, a judicial officer opined that he may increase CFI fees in a complex case such as a relocation matter. Regrettably, it appears that in practice the court continues to view CFI as the preferred assessment procedure regardless of case complexity.
The difficulty in defining the scope of CFI is related to the complexity of the divorce process itself. In pre and post dissolution conflict driven cases, there are often competing subtexts (parental capacity issues, various forms of domestic conflict, child development concerns, allegations of drug alcohol use and abuse and other psychological problems). Rightly so, CJD 04-08 Standard 8 refers to the collection of sufficient data as it relates to “the complexity of the family and the family issues being investigated.” But this language cannot be squared with the circumscribed nature of CFI. The unintended consequence in Colorado is the misuse of CFI to answer “ultimate issues” in divorce cases. Again, the BFA designation of single issue cases focuses on emergent and necessary “child safety” interim recommendations. BFA’s are never utilized in final order determinations of parenting plan schedules, relocation, and alienation or IPV cases.
Approximately 5% of divorces involve high conflict dissolution and post-dissolution litigation. When such disputes are about high stakes issues (relocation, alienation, primary residential care, intimate partner violence [IPV]) with significant implications for a family, they should not be subject to brief assessment by the least trained evaluators no matter how badly the court wants recommendations. Defining CFI as distinct from PRE requires setting limits on what we can and cannot do under a court order. This limit is made clear in BFA. Recently, an attorney inquired about my availability to conduct a PRE. The court wanted interim recommendations first and then a PRE. I informed the attorney that it would be inappropriate for me to provide interim recommendations and remain neutral in conducting a PRE. The attorney informed me that two other evaluators were available per the courts request. Apparently these evaluators were unaware of the AFCC 2006 Model Standards of Practice for Child Custody Evaluators which states that custody evaluators “… shall refrain from making interim recommendations (page 13).”
The current practice of frequent state wide CFI appointments raises an additional concern. Given our reluctance to confront the high stakes/complexity problem, we are the only state in the country which allows non-MHP to conduct what often amount to FMHE in CFI cases that involve high stakes issues. There is considerable psychological research and literature related to custody disputes and it is difficult for FMHE’s to keep current let alone those practicing outside their areas of competence. Volunteers are at an even larger disadvantage. Of the thirteen competency arenas for CFI, ten are essentially psychological constructs (CJD 04-08, page 9). In short, FMHE are complex multi-task, multi-source assessments and yet in Colorado under CFI we allow for these types of investigations in order to get family recommendations to the court.
Until we take a critical view of the practical success of CFI as the preferred conflicted divorce assessment, we will not fix our system. I have reviewed many CFI reports over the years and have written about work product review. FMHE, even those done by trained people, can be flawed, and ongoing training as well as peer review is necessary for all evaluators. The CJD 04-08 capitated CFI fee plan will not solve the problems left undone by our inability to limit the scope of CFI and may lead to increased lawsuits in high stakes cases where conclusions were reached on limited data.
I propose a two part approach to high conflict divorce cases (figure 1 page 6): we should “front load” intervention with a triage service, and provide a tiered model of increasingly more comprehensive FMHE. Triage has been defined as “differentiated case management”. By increasing investment and identifying needs on the front end, we can reduce the burden on the courts and lessen court involvement for parents. By matching a family to appropriate services, triage is more efficient than required mediation. We should provide easy access to a Parenting Facilitator (PF) early in the legal process pre or post dissolution.
The PF triage model has the potential to unclog dockets and prevent many divorcing or divorced people from developing deeper, more entrenched problems. We need skilled people at the front end of our legal system. I volunteered in the Denver courts for two years as a PF in post dissolution matters seeing parents or other caregivers for two hours. Working with over one hundred families in this setting convinced me that experienced MHP meeting with parents early in a pre or post dissolution dispute can have significant impact. At such “open moments”, we can assist parents in beginning the process of de-escalating conflict by helping them craft an agreement, recommending specific and cost effective services when needed, or referring the case to the court. If properly utilized, PF could replace wholesale CFI appointments as our first response to litigated divorce service. A PF triage model would allow the courts to focus on difficult cases by reducing dockets.
In a legal system that is underfunded and overburdened, we cannot keep ordering CFI without continued consequences: a two tiered system in which only those with money get the FMHE they need and others receive a CFI appointment even if their case is complex and defies the “simple solution” notion implied by CJD 04-08. While a workable distinction needs to be made between CFI and PRE as wholly different assessment procedures, attempting to resolve this problem through monetary limits alone closes one barn door but leaves another open. Conducting BFA and Focused PRE are options if we are willing to explicitly exclude relocation, child sexual abuse, alienation, IPV and other high stakes cases.
My proposed reform includes a front loaded PF triage service with the potential to reduce litigation. The second part of reform is to create a tiered system of assessments: BFA, Focused PRE and PRE. Properly done, BFA can provide the court with interim recommendations within thirty days. Interim recommendations do not involve “ultimate issues” such as a final parenting plan or a determination on parental decision-making. BFA provides a temporary solution in acute family and child welfare cases. BFA interim recommendations restore equilibrium, provide a temporary structure and give parents time to sort out their disagreements. And like all other assessments, BFA recommendations can also serve a settlement function. They can signal to litigating parents how their conflict could be viewed by the court at a later time.
Focused PRE are for those families that are not dealing with more serious, all encompassing concerns: parent mental health issues, relocation, abuse, parental alienation or IPV issues. These mid-level assessments can be comprehensive and efficient. There can be certain family situations which do not need an issue specific assessment where FMHE would be appropriate. Also, Focused PRE can be done for fewer dollars than a PRE and in a timely manner.
Parenting Responsibility Evaluations (PRE) address cases which involve overlapping areas of concern and/or significant high stakes disputes such as concerns about a parent’s mental health, drug/alcohol issues or relocation. A comprehensive assessment in these situations involves an in depth study of parental capacity, risk assessment protocols and other intensive investigation. Allegations can involve entrenched conflict, sexual abuse, IPV, alienation or significant mental health or drug/alcohol concerns.
In sum, it is time for Colorado to reform its approach to divorcing and divorced parents who litigate. Keeping a CFI driven model in place does not serve the custody litigant population.
 CFI became the easy tool because, early on, they cost less than PRE. Over time, the habit of CFI appointment was extended to complex relocation, multiple issue or alleged alienation cases. Also, in C.R.S. 14-10-127 PRE supplemental, the moving party is required to pay the initial expense of the evaluation; a hurdle that can be difficult for certain litigants.
 Full disclosure. I have been grieved unsuccessfully in about ½ of 1% of the custody litigant cases I have had since 1983.
 Like the Father’s Right’s groups of the 1980’s, Parents United In Change is a heterogeneous group. Many have legitimate complaints about poorly done CFI or other assessments. But members are also likely to be endless complainers; parents who don’t like to be told they have problems or limitations. They want to blame others for their problems and an easy target is the evaluator.
 The effects of divorce – Single parenting, and remarriage in children, adults, and families – Dynamics of high conflict divorce – Child development, including cognitive, personality, emotionally and psychological development – Child and adult psychopathology – Family dynamics and dysfunction – Domestic violence – Substance abuse – Child abuse – Parenting capacity – Diversity issues – Knowledge of available services and resources for the child/ren and parties including medical, mental health, educational, and special needs – The legal standards applicable in each case in which the CFI is appointed – Interview techniques for interviewing children and others.
 Lipkin, S., & Fyfe, B. (2011) Evaluating the evaluator: work product review as evidence The Colorado Lawyer 40, 35-40.
 Salem, P. (2009) The emergence of triage in family court services: The beginning of the end for mandatory mediation? Family Court Review 47, 371-388.
 Parenting Facilitator (PF) – A seasoned MHP reviews the client file, solicits parent/caregiver opinion and opens up a direct discussion of pertinent issues. Using evaluator experience, a problem solving approach, conflict resolution skills and early neutral evaluation training, the PF and parents try to develop a targeted service plan or a family specific settlement. If a resolution or partial resolution is achieved, the agreement is referred to the presiding judicial officer for approval. In other cases, an additional PF meeting or a hearing is scheduled.