The need for experts

It is an unfortunate fact that in divorce and other proceedings involving children, parents are often in serious conflict with one another and have profound disagreements concerning what is best for their children.  Under Colorado law, there are a number of different types of experts that may be appointed by the court to assist the parents in developing a parenting plan and, following that, to assist them in implementing that parenting plan once established.  While few parents find the idea of having third party experts and the courts involved in matters concerning the parenting of their children, the alternative of having no expert involvement can be much worse when serious conflict exists between the parents. 

Generally a contested allocation of parental responsibility proceeding (referred to as an “APR proceeding,” formerly referred to as a “custody proceeding”), whether it be in the context of a divorce or an APR or paternity proceeding between unmarried parents, will be heard by the court in a single day or even less.  The presiding judge has very little time to familiarize him or herself with each family’s unique circumstances and needs.  For this reason, as well as the fact that many judges do not have specialized training related to children involved in APR proceedings, the courts are very often in need of guidance from an expert who has specialized knowledge and experience in child development and the effects of divorce on children.  In addition to having specialized background and training, these experts also have much greater time than the courts to devote to identifying and working toward resolving each family’s particular problems and issues. 

In addition to assisting the courts, parents often need assistance from experts for purposes of creating a workable parenting plan that will serve their children’s best interests, and in some cases assisting them thereafter in implementing the parenting plan and resolving conflicts that arise once the court proceedings have reached their conclusion. 

Colorado law has evolved significantly in recent years with respect to experts in APR matters.  The courts, attorneys, family law litigants, and society in general have increasingly recognized the need for experts in APR matters to assist with better assuring that the best interests of the children are served.  In higher conflict cases, the involvement of a good expert or experts in the proceedings will usually (although admittedly not always) result in parenting plans and arrangements that better serve the children’s needs.
 
The different types of experts and their roles

1. The “CFI”

The most commonly utilized expert in divorce and APR proceedings is what is known as a “Child and Family Investigator” (CFI).  The CFI is generally a person with experience and training in child development and, often more particularly, dealing with children of families in conflict.  The CFI is usually selected by the parties, with the assistance of counsel.  The court will in most cases appoint the selected CFI upon written motion filed by one or both of the parties.  The court need not accept the choice of a party or parties and is at liberty to select its own expert to serve as CFI.  The CFI may, but need not, be an attorney.  Very often, the CFI will have a mental health background, whether it be as a psychologist, psychiatrist, clinical social worker, or other similar field. 

The methodology employed in conducting the investigation varies from CFI to CFI.  At a minimum, the CFI will meet extensively with the parents and children and will interview and seek information from persons who play significant roles in the lives of the children such as teachers, doctors, and extended family members.  In many cases, the CFI will conduct home visits and may review medical, school and other records for the children.  In some cases the CFI, or someone hired at the request of the CFI, may conduct psychological testing.  Ultimately, the CFI is responsibility for writing a report concerning his or her findings, which report will include recommendations concerning the parenting plan.  The report is provided to both parties as well as the court.

If the parents are still unable to resolve their differences concerning the parenting plan following issuance of the report, the CFI can, and generally will, be called to testify at any court proceedings.  The recommendations of a respected CFI will in most cases carry a great deal of weight with the court.  Accordingly, it is fairly common for the parents to resolve their differences concerning the parenting plan through a comprehensive agreement after issuance of the CFI’s report, which agreement will most often follow the recommendations of the CFI, at least on the major points.

1. The parental responsibility evaluator

While less common than the appointment of a CFI, the parents can seek what is known as a parental responsibility evaluation.  A parental responsibility evaluation is similar in nature to a CFI’s investigation.  However, there are some notable differences.  For example, the evaluator must be a licensed mental health professional.  He or she must also have specialized training in particular areas concerning the impact of divorce on children, appropriate parenting techniques, applicable clinical assessment methods, and other related areas.  The methodology employed by the evaluator performing a parental responsibility evaluation is also more strictly circumscribed than for a CFI performing an investigation.  As with a CFI, the parental responsibility evaluator is required to prepare a report at the conclusion of the investigation with his or her findings and recommendations.  While parental responsibility evaluations are much less common than CFI investigations there are circumstances where an evaluation may be preferable.  For example, if one or both of the parties suffers from serious mental health issues or disorders, an evaluation may be a better means of assessing the impact on the children than a CFI investigation.     

1. The “CLR”

In addition to, or in lieu of, a CFI or an evaluator, the Court can appoint an attorney to act as a “Child’s Legal Representative” (CLR”).  Unlike the CFI, the CLR actually represents the child or children as his, her or their attorney in court proceedings.  While the CFI may be called to testify at any court hearings, the CLR cannot be required to testify; rather the CLR’s role is to act as the attorney for the child or children at the hearings just as each parent’s attorney acts for him or her.  CLR appointments are not very common, but there are instances where appointment of a CLR will be warranted, most notably situations in which the children’s best interests and needs appear to be at odds with the wishes and desires of a parent or parents.  

1. The “PC” and decision-maker

Once a parenting plan has been established, the court and the parents often enlist the support and assistance of an expert or experts to assist the parties in successfully implementing the parenting plan.  Probably the most commonly used expert in this regard is what is known as a “Parenting Coordinator” (PC).  The PC generally assists the parties with any problems or difficulties they may have with the parenting time schedule, decision-making issues, parenting time exchanges, and any other issues or conflicts that may arise between the parents concerning the parenting plan.  A parenting coordinator may or may not be delegated decision-making authority to resolve disputes between the parents.  If the parenting coordinator is given decision-making authority, then he or she can not only facilitate the parenting plan, but can also make binding decisions concerning minor disputes between the parties, subject to review by the court. 

Likewise, the court can simply appoint a “decision-maker” who does not serve as a PC (i.e. is not involved in facilitating the parenting plan), but to whom the parties can bring any disputes.  The decision-maker can then review each party’s position on a particular dispute through a hearing process, written memoranda, or other means, and render a decision that binds both parents.  As noted, any such decisions are subject to a review process with the court which may be initiated by either parent.  There are limitations on the scope of a decision-maker’s authority, whether it be a PC serving as decision-maker or just a decision-maker who is not also acting as a PC.  For example, a decision-maker can resolve issues pertaining to disputes concerning the interpretation of the parenting plan; he or she cannot make decisions that modify the parenting plan.  

The court may also appoint an arbitrator to resolve disputes between the parents concerning the parenting plan and other matters.  The arbitrator’s role is similar to that of the decision-maker, although the decision-maker generally has much more flexibility in determining the means to be utilized in arriving at a decision on a particular dispute, while the arbitrator must follow more formal hearing procedures. 

Deciding whether to use an expert or experts

While in many cases, the appointment of a CFI or other expert is well advised, the parents should not make the decision to involve an expert in their case lightly.  Before engaging a CFI or other expert, the parents should strive to resolve differences concerning their children between themselves.  You, as the parents of your children, are most often in a better position to know what is best for them than any third party expert or the court.  Parenting plans that are arrived at by agreement between the parties tend to be more successful than those that are imposed by the court, or that are grudgingly accepted based on a CFI’s or evaluator’s recommendations. 

Before you select an expert, you should research his or her qualifications and background.  There is a large community of professionals who are eager to accept appointments to serve as CFI’s and other experts.  Some are very knowledgeable and skilled, some are not.  Just because someone will accept a CFI appointment does not mean he or she will do a good job in that role.  Your attorney can assist you in this respect, but it is also a good idea for you to do your own independent research on any recommended experts to the extent information is available. 

With respect to experts appointed to assist you in implementing the parenting plan (PC’s and decision-makers), you should give significant thought to how much authority to delegate to these third party experts, as well as the duration of their appointment.  Again, it is ideal for the parties to resolve their disputes by consensus between themselves and not through having to utilize a decision-maker or other expert.  However, in those cases where it is necessary, the qualifications and background of the expert are extremely important as are the parameters of what he or she has authority to do. 

Payment of the expert’s fees

In most instances where the parties are not indigent, the parents will be required to pay the CFI or other expert appointed in the case.  Most often fees for these experts are paid by the parties in proportion to their incomes, although the court has broad authority to apportion fees in the manner it deems appropriate.  For example, if one party’s belligerent behavior has resulted in greater fees for the expert (or the need for the appointment in the first place), the court may require that party to pay a greater share or even all, of the third party expert’s fees. 

A good CFI investigation and report will generally cost somewhere between $3,000 and $7,000, although the fee can be somewhat lower or higher, depending on the circumstances.  An evaluator’s fees will likely be somewhat higher.  With respect to experts engaged to implement the parenting plan, the fees are generally determined by how much need there is for the services of such expert.  Fees are usually charged at an hourly rate.  If the parties insist upon fighting over minor and trivial matters and refuse to work out even the most minor details between themselves, obviously you can expect higher fees from these experts than would otherwise be the case. 

Conclusion

Decisions concerning experts are critical to the outcome of your case and the best interests of your children.  You must decide in the first instance whether to engage an expert or experts at all.  If you decide to do so, you must then decide on the type of expert or experts needed for your case.  After that, and perhaps most critical, you must select the person or persons who will fill these roles.  Few parents are in a position to make good decisions on these issues without the help of experienced counsel. 

We stand ready to assist you with this and all other aspects of your case and look forward to the opportunity to serve as your counsel.

We provide the highest quality legal representation with affordable fees.