Parents often want their children’s voices to be heard during the divorce process. However, how that happens can vary greatly depending on the family’s situation.
On this episode of Children First Family Law, Krista explains the “best interests” standard in Colorado and what families can expect regarding their child’s voice being heard in court. She outlines the nine factors Colorado uses to determine parenting time allocation, including considerations of factors used in allocating decision-making in a no-fault divorce state. Krista shares specific situations, such as alcohol or drug abuse or domestic violence, that can elevate a child’s voice in these scenarios, the ideal scenario for parenting time versus what often occurs, and ways a therapist can be utilized in a divorce case. She defines the roles of Child and Family Investigators (CFIs) and Parental Responsibilities Evaluators (PREs), as well as the drawbacks of involving either of them in a case. Finally, Krista explains how you can benefit from a child’s best interests attorney (Child’s Legal Representative or “CLR”) to attempt to curate solutions alongside parents and professionals involved in your case while representing the best interests of the child as an attorney advocate who obtains and considers the child’s wishes
Divorce can be messy and traumatic for everyone involved. Keeping your child’s best interests at the forefront and hiring qualified professionals can make the process smoother, making it more manageable for everyone.
In this episode, you will hear:
- The use of the “best interests” standard in Colorado
- Ensuring a child’s voice is heard in the court while avoiding an adversarial approach to the other parent
- Colorado’s implementation of nine factors to determine parenting time allocation, including:
- Parents’ wishes
- Child’s wishes
- The relationship between the child and parents, siblings, and any other person who significantly affects the child’s best interests
- The child’s adjustment to home, school, and community
- The mental and physical health of everyone involved
- The parties’ ability to encourage the sharing of love, affection, and contact between the child and the other parent
- Whether the parties’ past involvement shows a system of values, time commitment, and mutual support
- How far apart the parties live
- The ability of each party to place the needs of the child ahead of their own needs
- How no-fault divorce impacts considerations of parenting time and decision-making
- Alcohol abuse, drug abuse, and domestic violence, and Colorado’s statute that indicates a child’s voice should have strong consideration in these situations
- The ideal scenario for parenting time versus what often occurs
- A movement in Colorado toward children over 12 years old to become more actively involved in court proceedings and hearings in the dependency and neglect courts but not so much in domestic/divorce courts
- Ways a therapist can be used in court proceedings
- Bringing in witnesses to testify to what’s best for the child
- The role of Child and Family Investigators (CFIs) in Colorado, their requirements, their cost, and how they can impact the parenting dynamic
- The role of Parental Responsibilities Evaluators (PREs), who can do everything a CFI can, plus do deeper analysis including psychological testing of parents
- The downsides of bringing in CFIs and PREs
- The benefits of a child’s best interest attorney or Child Legal Representative (CLR), who they represent, the requirements they must meet, what they can and cannot do, and what they cost
- A CLR’s ability to curate the right people to work with the parties involved in the case
- When you should pursue a child advocate and why you shouldn’t wait too long
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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How Do I Get My Child’s Voice Heard? Picking the Right Child Advocate in Child Custody Cases in Colorado Podcast Transcript
Krista Nash 00:00
Statutes come out of the legislature, but they’re informed by psychologists, no health professionals, family law attorneys, a lot of different historical knowledge about what is best for children, and they are written the way they are for a reason. So parents, instead of fighting against those factors, really might want to consider why those factors are that way, and whether or not you are actually meeting those factors when you’re saying, is my child’s voice going to be heard, or how to get it heard and make sure you listen through the entire episode. Because as I go through, I will give a lot of actually active ideas as to how to get your children’s voice in even without a child advocate. And then I will end with how in Colorado in particular. But again, these principles are true in most states and internationally, you just need to make sure you know what the lingo is in your particular jurisdiction. I will tell you what the different child advocates do and what they cost and what you should think about, particularly in Colorado, as to what those options are for you.
Intro/Outro 00:58
Welcome to the Children First Family Law podcast. Our host, Krista Nash, is an attorney, mediator, a parenting coordinator, and child advocate with a heart to facilitate conversations about how to help children flourish amidst the broken area of family law. As a child advocate in demand for her expertise throughout Colorado and as a speaker on these issues at a national level, Krista is passionate about facilitating and creatively finding solutions to approach family law matters in a way that truly focuses on the best interests of kids. Please remember this podcast is provided to you for information purposes only. No one on this podcast is representing you or giving you legal advice. As always, please enjoy this episode and be sure to like, subscribe and share the podcast with others you think would benefit from this content.
Krista Nash 01:48
Hey everyone, welcome to today’s episode. I’m glad you’re here today. We are talking about the very important topic of how to get children’s voices heard in custody cases. And parents ask this question, and lawyers ask this question sometimes. The entire system has been focusing more lately on children’s voices and getting that into court, or at least getting it considered in cases in Colorado, where I practice, we use the best interest standard, and that is used in most states across the country. It’s used in a lot of countries internationally as well. It’s by far the most predominant way that courts and family law attorneys and parents, therefore, need to analyze cases. In some states, we have ages where the children are given more weight, where their opinions are given more weight. So for example, it will say at age 14 or something, around that age, a child’s voice gets more weight than other factors. But in almost all jurisdictions, it is not the case that a child just gets to choose at a particular age. That’s a very common misconception that I hear frequently, especially from children, and a lot of times from their parents, where they’ll say, Well, I heard that when I’m 12, I get to pick. I heard when I’m 14, I get to pick. And parents think that’s true a lot of the time also. So this is an important topic for you all to consider, and there are a lot of ways to get children’s voices into court. I want to start by just saying that in Colorado and across the country, first of all, you need to think about, are you asking the question of getting a child’s voice heard? Because you’re trying to have an adversarial approach to this that is attempting to block a child’s relationship with one parent. It’s just a very important question to ask yourself, because that is usually the undertone in which I get those questions, the question comes to me sort of like this… I want to know how to get my kid’s voice heard because my kid hates the other parent and really doesn’t want to see the other parent at all, or my child really just prefers to live with me and not with the other parent. And I want to make sure that that can happen, that is giving weight to the child’s voice in a way that is not necessarily considering all the best interests.
So I’m going to talk a little bit at first here about what those best interest factors are, and hopefully it’ll frame not only for you, how the courts look at it, but also how you might want to look at it. Because these factors, while they’re not perfect, they have been heavily, heavily considered by advice of all sorts of people. Statutes come out of the legislature, but they’re informed by psychologists, no health professionals, family law attorneys, a lot of different historical knowledge about what is best for children. And they are written the way they are for a reason, so parents, instead of fighting against those factors, really might want to consider why those factors are that way, and whether or not you are actually meeting those factors when you’re saying, is my child’s voice going to be heard, or how to get it heard, and make sure you listen through the entire episode, because as I go through I will give a lot of actually active ideas as to how to get. Children’s voice in even without a child advocate. And then I will end with how in Colorado in particular. But again, these principles are true in most states and internationally. You just need to make sure you know what the lingo is in your particular jurisdiction. I will tell you what the different child advocates do and what they cost, and what you should think about, particularly in Colorado, as to what those options are for you in Colorado, specifically, and again, for most states, but in Colorado, I’m going to cite to Colorado Revised Statute 1410, 124, 1.5 is “the subsection we ask for what the allocation of parental responsibility should be. The court shall determine the allocation of parental responsibilities, including parenting time and decision making in accordance with the best interests of the child.”
And so what are those best interests? The best interest factors that are set out in subsection 1.5 And there’s nine of them, and these are required in Colorado to be considered when determining parenting time. And even if you do a case on your own and you’re just going to court to get it adopted, and you’re not asking the court to make the decisions, you still have to say in your documents that this is in the children’s best interests. And so you are essentially acknowledging that the best interest, which is these nine things in Colorado, are being met in the plans that you’re putting together.
The first one is the parents’ wishes. The second one is the child’s wishes, if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule. Hey, I’m going to get back into that, because this is the key thing we’re going to talk about today. I will have another episode in the future on just best interest in general, but it’s important to frame this conversation about children’s voices with what these factors are. The third one is the relationship between the child and parents, siblings and any other person who significantly affects the child’s best interests. Fourth is the child’s adjustment to home, school and community. Fifth is the mental and physical health of everyone involved, although there’s a caveat that disability alone cannot be a basis to deny or restrict parenting time. Sixth, the party’s abilities to encourage the sharing of love, affection and contact between the child and the other parent. Again, a caveat on that is that actions to protect a child from witnessing or suffering abuse shall not be considered for this factor. Seventh, whether the party’s past involvement shows a system of values, time commitment and mutual support. Eighth, how far apart the parties live. And ninth, the ability of the part of each party to place the needs of the child ahead of his or her own needs.
I’m not going to get into decision making factors for now, because that’s a whole nother topic. The other thing you need to understand, though, is that there are things that Colorado and many other states do not consider. Most states use no fault as the divorce parameters. It used to be that we had fault divorce like, whose fault is it? We don’t do that in many, many states, including Colorado, and that means that in considering parenting time and parenting decision making, the statute specifically says in section two “that the court shall not consider conduct of a party that does not affect the party’s relationship to the child”. And so there’s a lot of things that people come to attorneys with and say, oh, you know, he was looking at pornography, or she had an affair, or things like that. Those things could affect the relationship with the child, but generally they don’t.
Okay. So you’ve got to recognize that there are a lot of things that affected the marriage that did not affect the best interest analysis. And so, for example, there’s cases where somebody has a job that might be, I don’t know, like I had a case once where the mom was working as an adult dancer, for example, and you know, the dad didn’t want that mom to have parenting time because of that. That doesn’t work unless there’s something else going on that actually affects the the child, like religious preferences wouldn’t be something, or someone’s salary would be something, or an educational level of a parent, or that a parent is in therapy, those things are generally not things that would be considered also, like previous criminal contact conduct would not necessarily be something that matters, although, If we have something like alcohol abuse or drug abuse, that really could be something and that is something same with domestic violence, that can be something specifically too. You need to understand that Colorado does have a statute that says that domestic violence can be considered a child’s voice needs to have paramount consideration in the way that we look at the case, and the child’s voice really does need to be heard in that kind of situation. So those are things that affect the best interest standards, and that is something that parents really need to think about as they are considering in their own case and their own family… hat they mean by getting a child’s voice heard. Now, I will note that I think there are only seven states that don’t list factors specifically, and I will do another podcast at some point in the future that gives more details on this, but the vast majority of states handle it with just a best interest analysis. You should Google how your state handles it.
Alright, let’s talk about getting the voice of the child in. And the first thing I want to point out is really that if you’re doing your family well, the best way that this can happen is that the parents would talk to the child directly together. Now is that going to work? I know it’s very Pollyann- ish. Sometimes we have kids saying different things to each parent, and so when that’s happening, you’re starting off your divorce in a situation that can create some loyalty binds, where they’re telling one parent one thing and when the other it can be very highly tense, and it can increase the conflict to do it that way. But if there is any way early in your situation, that you can talk to your children and together, understand what the children might want. That really is the very best way to do it. Okay, recognizing that that doesn’t work in most situations. Also, it’s always possible to ask the judge.
So secondly, ask the child to be heard by the judge. I will say that, you know, within the domestic violence statutes there in Colorado are opportunities now that ask that the court consider more strongly that they would consider talking to the child. I will tell you that it is never, I think, in the child’s best interest, to testify. There would be very, very rare exceptions to that, I’d say almost never, maybe 99% of the time, and I’ve never seen a judge allow a child to testify, even for adult children who are emancipated by age. That’s not almost never requested, and it’s almost never best, sometimes maybe 1% of the time, it might be something necessary. It’s incredibly stressful and adversarial to ask a child to go to court, and when we do this with the judges, you’re asking for what’s called an in camera interview. In camera means not in the open courtroom. It’s generally recorded, or it’s done in front of lawyers, and it’s gotta be recorded in some way where the court can tell parents and attorneys, or parents without attorneys, essentially what happens. So there’s it’s never really done just in some secret kind of way, and judges generally hate doing it. It’s filled with a lot of questions about what they can even consider they’re not trained as child interviewers, and it’s so it’s a rare situation that the judge will do it in Colorado, I find that judges almost never do it now, but it is something you can consider. So I want you to understand, you know, a lot of times kids will say, What do you mean? I can’t talk to the judge. What do you mean? I can’t come to court. And kids, by the way, should not even be in court in these kinds of conflicts. I will, as an aside, say there is a movement, including in Colorado, to have children, particularly over 12 years old, in dependency neglect cases, so where there’s abuse that has gone on to be more actively involved in court and in court hearings. In Colorado, actually, we have counsel for youth, CFI (Child Family Investigator), as opposed to Guardians ad Litem (GAL) for kids 12 and up, and they are encouraged actively to take part in their cases and to be in court. But that is in a different context. We don’t have that in a divorce context. I think it’s because, you know, in that sort of situation, we’ve got the state against a parent or parents, and it’s got a different posture than a parent against a parent. We’ve not seen kids in domestic relations cases, which is where divorce lands, really be engaged in the case in that way. I think we’re all still trying to really preserve the ability for the child to have a great relationship with both parents, and so we don’t have this push for children to be involved at that level. We’re trying to do it more carefully than the way that the case is postured in dependency and neglect.
Okay. The third way that you can get a child’s voice in, or at least a voice considered, I’m not talking about getting a child’s voice into court. I’m talking about understanding what children need, right? So if we’re talking about this from a family systems perspective of how we get this handled in a way where we understand what the child needs, and we’re doing it in a way that is helpful to make the whole family be able to flourish after the divorce, the whole question of, how do I get my child’s voice considered, these first few that I’m giving you involve, you know, considering the child’s voice, not necessarily getting it into court. Okay, so talking to the parents. If you want to get it into court, you might talk to the judge. Another way to do it is to talk to the therapist. Okay, so if children have therapists, and if they’re over 12 years old, they’d have to sign their own disclosures that you’d have to talk to the releases. Really, it’s a better word for it, that you can talk to the therapist. The therapist theoretically could give the parents solid information on what the child needs or wants. You could do this as parents, together with the therapist. Then if you need to pivot to getting that information into court, that is possible, depending on what therapist you have, some therapists very vehemently fight that. They say they don’t want to testify because they don’t want to ruin their relationship with the children or with the parents. But therapists are allowed to testify. A lot of them shy away from it, but they are allowed to testify, especially if the child is allowing them to testify. And there can be limited releases signed that give parameters around what the child’s therapist is allowed to talk about and not talk about and that usually takes away some of the concerns of both the therapist and the child in terms of what will be said potentially if the therapist testifies. So a therapist can be used in two ways. The therapist can be used initially, before you start heading off to court to try to get really solid information, to provide information to families, so that you can make good decisions for your children and consider the child’s voice without running off to court, and if you have to go off to court, having a therapist be able to testify is something that can get in a lot of hearsay, which are out of court statements by the child. There are exceptions to those hearsay rules that allow a therapist or any kind of medical or other therapeutic provider who is treating the child to be able to get those statements in of the child. So hearsay is a whole nother huge problem, and it’s done for the rules for good reason, but it can be very overused, I think, in family courts, but we’re basically trying to make sure that everything that comes into court has authenticity to it. And you can imagine that if one parent gets up, or another parent or other witnesses get on the stand and start saying third party statements, like my daughter said this, my son said this, multiple other people said this thing. That’s all hearsay. It’s out of court statements for the truth of the matter asserted, and that’s complicated law school language, but that is what the rule says. So there are a bunch of exceptions to that, but generally, you’re not allowed to just get on the stand and say what a bunch of other people said, and that’s true of children’s statements as well. I will say that the hearsay rules might be loosening slightly for some cases, as in Colorado, our family law rules are potentially changing a little bit. But stay tuned for another episode on that in the future. When that’s all finalized, it isn’t quite final yet, and it’s a little bit of a perspective of how this is going to finally look like when it actually gets passed all the way. Okay, so that’s talking to the therapist, and just be sure that you’re doing that very carefully. And you might want to pick therapists based on whether they’re willing to testify, because it does cause a big problem later, if the therapist absolutely refuses, and you know what you’re going to do about that, it can kind of create more headaches than are necessary.
The fourth way to get children’s voices in, again, is to bring in other people to testify, and this is, again, if you’re going off to court, I suppose you could, as a family, also proactively talk to others. So for example, maybe a pastor or grandparents or other people who know the children well, or teachers. For example, we’re getting divorced, what do you think would be most stable? What do you think we should do by bringing in that kind of good, wise counsel from other people might be actually really helpful for you, to help get things settled in a way that really does meet your children’s needs. For example, you know, who is really able to do the school parenting time? Is there one parent that can do it better than the other, who can get the kid to school more functionally than the other parent, who has a job that’s very difficult, who’s able to support the kids, extracurricular needs, more and things like that, really be considering that yourselves before you run off to court. If you do run off to court, though, you could bring in others to testify, and anyone can testify who has personal knowledge of the situation, again, not kids and not adult kids. They almost never testify. And you know, no one can testify if it’s hearsay, so the only way someone can testify is as to what children have said or what they’ve heard, is if it meets the exception. So some of and I’ll give you another exception I already told you about, the one about therapists, but another would be excited utterances. So let’s say a kid ran out of the house and called their grandma right after a parent allegedly hit the child or threw something or was really drunk, if the child’s doing that right after it happened in an excited way. It’s an excited utterance, meaning like, oh my gosh, this just happened, grandma, I need you to help me. That could probably come in because there’s, again, we’re looking for authenticity, and that is considered more authentic than something that might be said, not in sort of a in the moment kind of thing. So if somebody jumped out of the car accident and said, Oh my gosh, this person hit me, that’s considered more valid for a witness to say than if it didn’t come with that kind of level of. Excitement and imminency right around the time frame. So there, this is all complicated lawyer stuff, but it’s difficult to get these things into court. Also just I want you to think about it before you start dragging other people into court. I’ve been in situations where we’ve got a bunch of people testifying. It is just heartbreaking, and it really does cause a lot of injury to the ongoing ability for the now divorced parents and the extended families to be able to still engage in a meaningful, productive way that helps be in the kids best interests. So just think about that when you start dragging people into court to testify about things it’s hard to recover from that later.
Alright, so now let’s pivot to the core part of this now that you understand the best interest, and you understand your sort of non child advocates, non child advocates ways to get things into court and to think about how to get your children’s voices heard. Now we’re going to talk about child advocates. And there’s these options in other states, like I said, but in Colorado, I’m going to use the language that we use here. And so there are a couple of different things you can think about. There’s basically three different advocates that can be brought in. First of all, we have Child and Family Investigators, CFI. And secondly, the other expert role is the PREs, the parental responsibilities evaluators. All right, so there are two different levels. I’m going to go through the CFI first, and for those in other states, these are considered child custody evaluations, or parenting plan evaluators. Are some of the other names that are used. So for CFIs s in Colorado, if they are privately paid, there is a cap, a statutory cap, that it should cost $3,250 and not more than that, although the CFIs s can come in and ask for more fees if they have an excessively, you know, time consuming case. Now I will say I am on the CFI rosters and have done a lot of CFI work in the past. I almost never asked for an increase of those fees. I believe that the whole point of this is to be what we consider a concise and efficient reporting. It’s not supposed to be a massively extensive thing. I just read a CFI report the other day that was like 50 something pages. That is not what a CFI report is supposed to be. And my first question was, man, did this person do this for $3,250 like, it’s not supposed to be that extensive. And so I would challenge the CFI that the cap was put into place for a reason, and if they’re going over that, they’re really probably working beyond what they should be it might go over, for example, if there’s travel involved or something like that, but the general investigation should cost about that, or not more than that.
For CFIs in Colorado, there are state pay options if you meet indigency requirements, which is, you may ask the court to deem you eligible for state pay by filling out a form and asking them to consider whether you meet those indigency requirements. If so, it can be either fully paid by the state or your portion can be paid by the state. The time period of this there’s often a waiting period to start, not always, but often there is, and then it usually takes 90 to 120 days to complete. So you’re waiting, you know, several months. There is no psychological testing involved in a CFI, even if the person has a mental health background. The CFI are governed by the State Court Administrative Office, (SCAO), which also verifies the training of the CFIs, you have to be accepted through the SCAO to be on the rosters, and you have to meet the training requirements. I think you’re on the list. Then there might be an introductory probation period, I can’t remember. But then you’re on the list for five year periods and have to continually be reapproved. Colorado requires, through new statutes passed in 2023 and 2024 that the CFIs do need to be trained in domestic violence, child abuse and child sexual abuse, and certified that these very specific training requirements have been met most of the time. The CFI allows you to submit materials. I used to allow 100 pages from each parent. Some do it other ways. But that can be, you know, photos, records of communications, videos. I used to have an out, I think I didn’t out no more than an hour total of video and audio files. Sometimes there’s other things, doctors, reports, letters from letters from other people, grade records, things like that. You usually are interviewed separately from the other parent by the CFI. But that’s not always true. Some people do join interviews, but I don’t find that to be very common. I believe home visits should always be done at both homes in person, unless there’s a reason not to. I think it’s deeply flawed for any child advocate to not do in person and home visits. There’s many of these professionals that are not doing home visits anymore, and I think it’s a massive disservice to the children, because there’s so many different things that you can learn from being inside the home and from observing a child in his or her home and at both homes. So I think that’s a critically important part. CFIs are always going to talk to the children, but I think you should insist on making sure that they do home visits in person. The children should be talked to privately too, just so you’re it’s important that there, that there are private conversations that occur.
I mentioned travel. Sometimes investigations for relocations are done with significant travel by the CFI. I personally have never found that to be necessary or worth the cost, because a huge amount of evaluation can be done online these days, then collateral contacts. So really, anyone who has solid information on the children could be grandparents, could be teachers, coaches, pastors, good family friends could be anybody. Really are usually allowed to submit reference letters and they can be interviewed, but often they aren’t, and there’s usually a limit of the number that the that will be allowed, I will tell you should think about who you pick, because if there’s somebody who has really aligned with you, you know, like your mother or something like that, they’re not usually very helpful. If there’s a therapist or somebody or a coach who can really give some really more neutral insight that’s usually more helpful, but you’re allowed to decide how you want to present this to the CFI.
All right, the CFI does not and cannot give any opinions to you during the process. Cannot make interim recommendations and cannot be evaluative until they actually write their report, which is the next important thing? They write a report. The report has a huge amount of information in it. It’s based on all of the research and work that has been done. And therefore the CFI file is open to review in its entirety, including all emails, any text messages, anything at all that was part of the process is open to you if you ask for it. Once the report is done, all their notes, all the submissions, everything may be sent to both parties. And I’ll tell you that that can really make the co-parenting dynamic worse, because you are now inviting this adversarial process where each person is coming in and saying, here’s all the things that I think is bad about the other person they don’t usually say, all the good things, and all the extended people and all the documents that are trying to show what is wrong with the other parent and what is great about about yourself, can end up making that co-parent dynamic much worse. So just know that if you’re going through this process, it’s adversarial, and all the information that comes in is going to be open to the other parent. Then the report gets sent to you and filed with the court. And I used to write in my emails to parents, I’m going away. Don’t contact me anymore unless there is a very discreet question, and then if you need me to testify, let me know I did not do, you know, follow up, help them, or anything like that. My job is basically done other than potentially testifying, which you have to pay. I think $500 is the cap on that for testimony. And then seemingly more and more I’ve seen the unhappy parent gets a work product review with another CFI or person who can be evaluative. I never did work product reviews because I thought it was traitorous, honestly, because CFIs are genuinely doing their best work, and I don’t think it is professionally appropriate, frankly, to get money to basically just be bought, to give a different opinion, which is what is happening in that process. But because the CFI is making recommendations as to how parenting time should go, one parent is going to feel like they lost. You know, both parents are probably going to feel a little bit negative about it, because there’ll be negative things about both parents in it. But the CFI job is to make recommendations as to who should have decision making, what that should look like, who should have parenting time? What should that look like? Specifically, any other things that the CFI thinks would be helpful get into recommendations, and that is going to make it feel like somebody lost, and so that person runs off generally and tries to say the CFI did a bad job, and then you’re off to the races, going to court with dueling experts. I should have said very clearly, too, the CFI is an expert when it comes to testimony and the way that they are handled in court, and that is very different from another role I’m going to tell you about in a minute.
Okay, so that’s the CFI, the PREe has all the things I just told you. Okay, so they do all the things I just told you. And good PRE should do in person visits with children, and I will say they should do them when it works for the children and the parents. Like I got completely frustrated when these professionals don’t do it on weekends, don’t do it after school. I think if you’re going to be a child advocate, you need to really accommodate families as much as possible. Now that said, you know you might have to make a particularSaturday work, or a particular day after school, but kids should not be having to get out of school for these things. Okay, so PREs, again, all of the same, except for it includes psychological testing of the parents, and so that’s why it’s always mental health professionals and it’s usually psychologists.
I think if you’re going to pay the big bucks and get a PRE done, I think you should be getting a psychologist. There are some other people who do it, who have other mental health degrees. I frankly, don’t think personally, that they are or professionally, that they have the level of qualifications that I would want if I were hiring PRE. The PREs are way more in depth. They take way longer and they cost far more. I had one recently that I saw was about $35,000 often they’re $20,000 or more. And therefore that’s why I think you should hire somebody with that amount of training. If you need that level of care. Most cases don’t need PREs. And I will say generally that over the course of recent years, with the statutes changing, I guess I’d say the tenor or the temperature of the way the legislature has been kind of trying to make the system better, but also making a lot of fuzzy law that is making it very, very hard for CFIs and PREs to do their work, and with the tendencies of parents to grieve, mental health professionals, especially, but also attorneys to their attorney regulation Council or the Department of Regulatory (DORA). You know, that’s who licenses the therapists and the psychologists. A lot of people are leaving the field, and a lot of people who are in it, who’ve been in it a long time, I’ve retired early. So I think you just need to realize it’s hard to find good periods. It’s hard to find good CFIs.
Now, the ones who are good are very, very busy, and so you just need to understand that it’s really difficult in Colorado no matter where you are. I mean, whether you’re in Pueblo or, you know, the Denver Metro area, or Fort Collins or Greeley, Boulder, you know, most CFI and periods will travel a little bit to do this work, but you are really hampered by the just the sheer low numbers of who’s doing the work at this point. Okay, the upside though, like I said, these are both experts, and so the upside to this is that you get a report that is admissible and it’s filled with hearsay. Okay? And you don’t have to call those witnesses to the stand, and you don’t have to meet any other hearsay exceptions, which is why I explained all that complicated stuff in the beginning of this podcast. The child’s voice can come in through that report. So can the voice of all those other people who are interviewed by the CFI or the PRE, or whose documents were considered, all that hearsay comes flowing in. And so if you’ve got a case that’s running off to court, it can be easy, lots easier, to get all those voices in through that expert. And that is the massive upside to a CFI or a PRE.,
Okay, downsides, though. We’ll l just jump through these really quick. Again, cost, especially for the PRE the CFI, is very cost effective, honestly. But again, I think limited compared to other options and not as effective. PRE is extremely expensive. The timeit takes many months to get any feedback at all, usually four months, okay, for a PRE, usually longer than that. PRE is waiting time to start is usually longer, and then it often takes at least six months to get these things done, so you might be looking at a year before you’re even going to get feedback.
Okay. Also, third problem is that the family’s needs continually change, and the CFI and PRE can have a hard time keeping up with those changes. You’re always trying to get your reports done, and the writing of these things takes a huge amount of time and effort to get it right, and the dynamics keep changing the longer it takes. So it’s very common to get something where they’ll say, Oh, we just had this new thing happen, and we need you to re interview the children, or we need you to go consider this new incident that happened, or this new thing that happened at school, or this new need that just came up. And while those dynamics keep changing, it’s very difficult, and sometimes doesn’t even happen, that the CFI and PRE will consider those things so very, very difficult with the nuances of families to keep up with that also, because these are experts, you kind of have limited access to that person outside of the seriously controlled structure that they create, so you won’t have as much access. Also, there is usually almost never ongoing contact with the kids, so that, again, is going to be very carefully structured and controlled and has a hard time keeping up with the ever changing needs of children, and frankly, even sometimes they’re ever changing opinions, right? Because it’s very common that a teenager might get mad at one parent or the other and shift the perspective very rapidly. Okay? And then also, downside, it’s a ‘once in time report’, really, without the option to get questions addressed beyond. And minimal clarification of the report. If you want an update, you usually have to re-engage that CFI or PREand say that you want an addendum or, like a new one, basically a secondary one. And that is something that usually creates that whole process over again. You don’t just get to get on with the CFI or the PRE and really problem solve things very much it doesn’t. It just generally doesn’t happen, and that’s just because the role is very structured. Also, you are not able to get help with negotiations. Those people are not going to come to mediation with you. They’re not going to help you curate or craft solutions beyond what their recommendations are. Sometimes they’ll do a short interview, especially PREs afterwards, just to clarify with parties and parents what their parties and parents are the same thing, but with parents what they meant in their documents that they produced. But that’s really it beyond that you don’t have ongoing help.
All right, so now this gets us to Colorado’s, I think, best option for a child advocate is a Child’s Legal Representative (CLR). In other states, we call this a best interest attorney, an advocate for the child. Some states call it Guardian ad Litem (GAL). In Colorado, we have Guardians ad Litem for the dependency and neglect cases. And just as a slight caveat, I will say in some counties, we have paternity cases where a case is originating, where we don’t know who the father is, or that hasn’t been proven yet, and so we’re establishing paternity first in those cases. Technically, even though I’m doing the CLR role, it’s called a Guardian ad Litem, but set that outside your mind, probably because that’s not generally the case. Generally it’s called a CLR. And I’ve learned, I mean, surprisingly, like in Colorado, I’ve said many times in my podcast that it’s been on the books since the late 90s that a CLR can be appointed to these cases. But for many years, like decades, the CLRs were not used effectively. I got appointed as a CLR. Became a CLR, basically. And you can go back and listen to my very first podcast about how this happened for me. But I started realizing, wow, I didn’t even know this role existed. And I started to realize how powerful it was in terms of being effective for families and children. And so I have really been, you know, beating the drum, in fact, I’m going out today to do a presentation at a conference about this. I spoke last week at a conference. I’m speaking multiple times. Multiple times in the next few weeks to try to help people in Colorado and nationally understand what is the power and the help a best interest attorney can bring, a CLR can bring, and why should you be thinking about using this person instead of our typical old solutions of these child custody evaluators? And so it’s been exciting for me to watch this develop in Colorado, and I’m watching it start to develop in other places. And that’s just so affirming, because I really do think that it’s sort of this magic piece that can actually really, really help children and their parents flourish.
So let me tell you a little bit about the CLR role. Again, CLR is for Colorado, no matter where you are in the state, if you’re in Arvada or Littleton Lakewood, Golden across the entire state, Colorado Springs, there are emerging people doing CLR work. And any licensed attorney who has, well, really it’s any licensed attorney can do CLR work. There is no other necessary certifications or anything like that that you have to get, although that really probably does need to change, because some people that are doing CLR work are not doing it well, and that’s really unfortunate, because it is such a really powerful role when done well. It is true, though that the CLRs must have that same Domestic Violence, Child Abuse and Child Sexual Abuse training and certify that they have that training. The forms you fill out to get a CLR are JDF, 1319 and 1320 1319, is the motion. 1320, is the proposed order. You can google those. They’re on the Colorado judicial websites, or you can get them at the clerk’s office, but those are at your county where your cases, but those indicate the motion indicates and the order indicates that the CLR either is one contracted as an attorney with Office of the Child’s Representative (OCR), or two has demonstrated on his or her own that they have this training.
Okay, I will tell, just as an aside to my peers, that if you’re going to do CLR work, you have to be very, very careful that your training is effective, and that is a whole nother conversation, but it is essential that the training is exactly as the legislature has laid out, and that is very specific. You can’t just generally say you have the right training. I think the best way to get that training is actually to do the CFI training, because the state court administrator’s office has certified that that training is acceptable. So that’s the best way to show the training when you’re marking those forms, if the person is contracted with the Office of the Child’s Representative, which is the way that we get state pay. County for child legal representatives, that your case itself does not have to be a state pay case, but it just allows the courts to know that if you have a contract with OCR, then your box can be checked that you have the training, because OCR itself has determined you have the training. If you’re not an OCR attorney, who’s your CLR, then you have to show your own training outside of that.
Okay, so those are the two boxes that get checked. So you do have that kind of training. You do have to be a licensed attorney in Colorado in good standing with the attorney regulation Council in the Colorado Supreme Court. Very importantly, you are not an expert. You are a full attorney in the case, and you are representing a party. The party to the case is the best interest of children, which is why I went through all those best interest factors, so that you understand what the CLR is representing. It’s wrong for the parents to tell the child, I got you a lawyer. Okay? Because the attorney is not the child’s lawyer. The client is in the best interest of the child, which can be very, very different from what the child necessarily wants, okay, very, very important. And I use that example, and I know I say it all the time, but I think it’s helpful. I always tell children and parents, it’s like if a kid says, I want to eat ice cream for every meal, and I say, that is great, but let’s find ways to get ice cream, maybe more than other kids would have it, but you have to have some vegetables, so let’s figure out how to get some vegetables into your diet, right? It’s not reasonable to just say in almost all cases, you’re never going to see your other parent, even if you have domestic violence or child abuse. It is almost always, not always, but almost always something that we at least want to work on therapeutically and carefully in a really thoughtful way that is very trauma informed, and really does meet the children’s needs. But it is not reasonable to just say I just prefer to be with one parent and I never want to talk to my other parents again. That’s not in the child’s best interest. So that is a very key difference of what the voice of the child is, and how do I get my child’s voice heard, versus how to get my child’s voice heard and considered, but also do it within the actual way the court will look at it, which is best interest. Alright? So this person is not an expert, a full attorney. I fight with attorneys and parents about this all the time. When you bring a CLR on, you are inviting another party to the case. That means that that attorney has all the rights and abilities to be involved in your case, just like another attorney. So that means if you’re going to mediation, the CLR gets to come now, there are sometimes things that the CLR will voluntarily opt out of with agreement of all the parties. So if you’re going to just have a financial mediation, generally, CLR isn’t going to need to be involved in that. But importantly, the CLR does have the right to be involved in any kind of motion that gets filed, the CLR has to be conferred with. The CLR can file motions just like any other attorney. The CLR can file motions to restrict, motions to modify anything at all that a parent’s attorney could do, or that a parent could do on his or her own. The CLR also, very importantly, cannot testify. Why? Because they’re representing a party to the case. They’re an attorney on the case. Your attorney couldn’t get up there and testify. I can’t get up there and testify either. And so that is something that people don’t understand. It’s very important you understand that it’s very different from a CFI and a period. The cost varies greatly. Okay, you’re paying an attorney to represent, just like the other attorneys in the case would represent. That attorney has the same and usually more training in the actual child relevant pieces than the other attorneys on the case. So you’re going to pay attorney rates and how much that costs, just like your own attorney. It’s greatly variable, depending on how crazy the case gets, how much litigation there is, how much fighting there is, how many motions there are, how reasonable everybody is, I think you need to really consider so the cost is always going to be more than the CFI, and sometimes it’s as much as the PRE is, right? But that’s one where you’re going off to a hearing, you’re fighting. You know, we don’t have people being reasonable. We have people really being dug in most cases that don’t cost nearly that much, but it can. And so you just have to realize that you are asking for another attorney to be involved. And you really need to consider that now you can get a state pay CLR again, because the Office of the Child’s Representative is able to pay for that if you meet the indigency requirements. So there are specific names of CLRS who are on those rosters that you can find on the Office of the child’s representative website, and you look at the attorney list, and that will allow you to know who can take state pay in those areas. But in that middle ground between people can really afford this, and people who are indigent enough to get state pay, is a vast number of people who it might be really hard to pay another attorney to be involved, or to pay an attorney to be involved at all. But I want to encourage you that the CLR effectiveness, if you have a good CLR, is so much more cost-effective than going to court, because a good CLR is going to really help you and your backs navigate how to do this best for the children, and do so in a way that keeps your other costs down. So while the costs and almost always it does that sometimes we get an entrenched lawyer or an entrenched parent, and we all have to run off to court, but I will tell you that it’s almost always the case that when a CLR is involved in has done all of this work, it is very unlikely that the court is going to do something opposite from what the CLR recommends. I’ve actually only had courts do more protective things, or the person that is opposed to what my position is ends up I’ve only seen it go worse for that person, not better by running off to court. And yet, they’re incurring lots and lots of 1000s of dollars of more fees running off to court to now fight the CLR in addition to fighting their other parent.
So if somebody is willing to listen and to really act based on a reasonable child centered party to the case. Really, you can get a lot done, and it can be incredibly resolution based, and that’s what I consider my best skill as a CLR, is finding a way to get to know people, get to know children, and then to like, just like doing the investigation I would as a CFI, that’s about what I’m doing as CLR, but I’m doing it far faster, and I’m able to within, usually about a month or so, sometimes slightly more. It just depends on when people pay and when I do home visits and things like that. I am able to give people feedback almost immediately, and I can curate that in a way that is more relational. I can talk to a mother, talk to a father, talk to, you know, talking to both parents, talking to their attorneys, negotiating and navigating in a way that really pushes it forward, because I am earning the right to be able to have these conversations and speak reality into what the court is going to look at and what a child advocate sees. And it really helps foster resolution that leads to, you know, I think really cooperative co parenting, usually in the future. And it’s just far more effective than just hiring these other experts who then can’t help you in that way, the whole thing is far less process heavy. There aren’t all these different rules of engagement in the same way. There aren’t statutes that you can only do it this way, or only do it this way. I’m not tied and bound by what CFI have to do, so I have a lot more nimble ability to meet a family’s needs and to help people in the way that they need to be helped without having to kind of walk through this lockstep approach that is generally required by a CFI or PRE process. Also my notes and documents are covered as to privilege for the best interest of the children, so I’m not fueling warfare by sharing everything with the other parent. I don’t have to share my notes. I don’t have to share anything I don’t want to share if I don’t think it’s in the best interest. And I generally, I’ve never had to share my file with anyone, honestly, and I, one time, was ordered to provide it to the new CLR on a case which I did. In fact, the court had asked me to just release my file, and I, you know, strongly objected, and was able to win that, and basically just allow it only certain things, and only certain things going only to the CLR. So there’s a lot more protection, and the whole process is so much less adversarial, unless you get to a point where we come to a standstill and people are not listening, in which case that CLR is going to go off and make best interests arguments as part of being part of the Joint Trial Management Certificate, part of any hearing, part of mediation, etc. And that can be very, very helpful to the court.
I will tell you that my early podcast talked about CLR work a lot, so you can go back and listen to that as well if you’re interested. And I do talk on the podcast, I think I’ll mention one other thing about this. I talk on the podcast a lot with psychologists, and I talk with Dr Kathleen McNamara, Dr Richard Spiegel, who are both here in Colorado. Dr McNamara is in Fort Collins. Dr Spiegel is in Denver, and I am going to have him the show soon, Jill Reiter, who’s in Denver and Dr Shelly Bresnik, who is in Lakewood. You think who else I’ve had on? I had Cynthia Roberts on, who I think does a lot of work. Well, she’s kind of all over. She’s a parenting coordinator, supervisor, and does a lot of therapeutic type informed work in that way, I have all of those people on the show, along with some great judges and other therapeutic psychologists and researchers from around the country and around the world, and these parent-child contact problems are one of the biggest reasons CLRs get brought on as cases become more toxic, or as cases have started, and you have especially teenagers who won’t see that to see the other parent, or really having contact problems with one parent. These things usually need therapy. And so the nice thing about a CLR as well is that a CLR has the ability not to just recommend therapy at the end of a CFI or PRE report, but. Again, curate the right professionals, the right therapeutic people or person to come on to the case, to work with a child and a parent or a family systems type approach to this, and then to continue to navigate that moving forward, helping the therapist, helping the parents and attorneys, or just the parents, figure out how it’s going push the kid when necessary. I can actually help push the child when necessary to move something along. And I will refer you, therefore, back to my other podcast episodes, for example, with Dr McNamara and Dr Spiegel, both of those earlier episodes, who talk in great detail about how we do this very nuanced work, working with a CLR and a psychologist or another therapist in a way that continues to manage the case and usually push court out in a way that is very productive to get solutions that don’t normally come and don’t come with these other child advocacy roles generally. So that’s very, very important.
The other thing I will tell you is that a CLR can and often does, become after the case is finished in court, can morph into the Parent Coordination Decision Making (PCDM) role. One of my early podcasts is about my work as a PCDM, and I often get moved into that role by families, because they have found the CLR role to be so effective in problem solving, they really do say, how do we keep you on to help us keep this very sane and amicable approach moving forward? And that is to do an appointment as a PCDM, and therefore I can continue to work with them and give the same kind of help. Now, at that point, I cannot do the actual court work anymore. I can’t go file motions on my own, like I could as a CLR, but I can keep them out of court by doing the kind of work that I did as a CLR, last thing I will just note is there are some options out there in divorce land, where, instead of going and getting a child advocate later in your case, or when things are already starting to get bumpy, which is when the child advocates are usually appointed.
Another option is to go and get somebody who can help you with your divorce from the get, go and do it in a peaceful way. And that’s where those ideas in the beginning came in. You know, I do something which you can find on my website, which is called, I call it Amicable Uncontested Divorce. I’m still sort of weighing that name and whether I like it. I know it’s sort of a mouthful, but the idea is, if you get somebody who can come in and help both parents not represent either, but bring all this really rich child advocacy experience and also knowledge of representing parents in many, many cases, on the financial side of it, and in court as all of the things you need to do to go through a divorce, you really can curate these kind of solutions from the get go. So as part of my Amicable Uncontested Divorce offering, I do offer the ability for to let me go talk to your kids and talk to therapists and help bring that information to you all early in the process, not appointed on the case at all, not appointed as a child representative or any kind of child advocate, not legally representing either parents, but just helping guide this whole system before you go to court. That is another option that you might want to consider, so that you don’t go down this road. And if I could get a hold of parents earlier, that’s the kind of work I would really promote, because there really is a way to stay out of court and do this well, all right, thank you for listening. I will have much more information on this in the future, and many more people coming to speak with you, but I hope this really helps all of you, but especially those of you in Colorado, understand the different ways that you can try to get your child’s voice heard, and more importantly, not just heard in court, but heard in the family in a way that can potentially really create solutions that help children flourish.
Intro/Outro 53:47
Krista is licensed in Colorado and Wyoming. So if you are in those states and seek legal services, please feel free to reach out via ChildrenFirstFamilylaw.com that is our website where everyone can find additional resources to help navigate family law as always, be sure to like, subscribe and share the podcast with others you think would benefit from this content.