The Colorado Senate is considering a bill that would drastically amend provisions relating to how Courts allocate parenting time in domestic relations cases. The amendments would also limit the scope and authority of the two professionals used most in child custody litigation, Child and Family Investigators (“CFIs”) and Parental Responsibilities Evaluators (“PREs”). The language of the bill indicates that the main purpose for these amendments is to minimize the harmful effects of custody litigation on children. Herein I will examine the impact this proposed legislation will have on initial parenting time determinations made in domestic relations cases. As discussed below, the proposal to limit the role of CFIs and PREs in family law matters may undercut the exact purpose of the remaining amendments in SB 15-129.
Existing Law
Under existing law, Colorado Courts resolve disputes concerning an initial allocation of parenting time using the best interest standard found in C.R.S §14-10-129(1.5)(a). The Court is required to consider the following factors when making a determination of what parenting time schedule is in the best interest of the children: (1) The wishes of the child's parents as to parenting times; (2) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule; (3) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests; (4) The child's adjustment to his or her home, school and community; (5) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time; (6) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; (7) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support; (8) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time; (9) Whether one of the parties has been a perpetrator of child abuse or neglect under C.R.S. §18-6-401, or under the law of any state, which factor shall be supported by credible evidence; (10) Whether one of the parties has been a perpetrator of domestic violence as that term is defined in C.R.S. §14-10-124(1.3); and (11) The ability of each party to place the needs of the child ahead of his or her own needs. C.R.S. §14-10-124(1.5)(a). Existing statutory provisions already prohibit the Court from creating any preferences or presumptions concerning parenting time based on the gender of the parent.
Determining the relative weight to assign each of the aforementioned factors, coupled with the complexity of child development and psychological issues that are present in many custody disputes, can make the appointment of a mental health professional extremely helpful for the Court’s determination of what parenting schedule is in the children’s best interest. Courts frequently appoint CFIs and PREs to conduct investigations, submit reports and make recommendations to the Court. These recommendations, while not blindly adhered to by the Court, often provide a catalyst for settlement.
Proposed Amendments
SB 15-129 seeks to substantially modify the standard used by the Court in initial custody determinations. This legislation would eliminate the best interest standard and replace it with a mandate for the Court to allocate “substantially equal parenting time” unless the court finds that doing so would endanger a child’s physical health or significantly impair the a child’s emotional development. This “endangerment” standard currently exists in family law cases. For instance, the “endangerment” standard is what a party must prove in order to restrict another party’s parenting time with the children. One common form of restricted parenting time is requiring a party’s parenting time to be supervised by a mental health professional or neutral third party. As you can imagine, this is a high burden and can be difficult to meet.
SB 15-129 also significantly limits the roles of CFIs and PREs. This legislation would change the nature of an investigation by a CFI from evaluation and recommendations to investigation and fact-finding. CFI reports will no longer be permitted to make recommendations regarding the allocation of parental responsibilities, but instead will provide the court with the factual findings the court deems necessary to make such determinations. Similarly, PRE reports would be limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court's allocation of parental responsibilities for the child. The investigator's report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.
Discussion
SB 15-129 is flawed on a number of fronts. Most significantly, the proponent of this legislation highly underestimates the importance of recommendations of CFIs and PREs in resolving custody disputes. While no parent or attorney should blindly accept or adopt the findings or recommendations of a CFI or PRE, these findings and recommendations need to be weighed, analyzed and considered when evaluating the risks and merits of proceeding to litigation. Stripping CFIs and PREs of the ability to make recommendations to the Court may actually run contrary to the stated goal of SB 15-129 and increase child custody litigation. Furthermore, the lack of meaningful definitions and ambiguous phrases, such as “substantially equal parenting time”, creates no additional certainties or clarity than the existing statutory framework, and thus, will likely not result in reduced litigation.
If the General Assembly is interested in exploring methods for reducing conflict and child custody litigation, more focus and resources should be put toward early intervention strategies and mechanisms, such as early neutral assessments and interim early decisions makers. There seems to be growing support for and recognition of correlations between early assessment and intervention and decreased disputes and acrimony in child custody cases.