Too often, family courts focus on viewing cases through a typical civil court lens rather than considering the children and families who need nuanced solutions that best preserve coparenting and meet specific needs of specific children. Typical courts that rotate judges and have little background in these nuances often fail to meet such needs, leading to debate about whether dedicated family courts can serve families and children better.
On this episode of Children First Family Law, Krista sits down with Fran Fontana, an attorney and thought leader in Colorado who is a thought leader in the dedicated family court debate. Fran brings significant authority to the conversation, including serving on the Colorado Supreme Court Standing Committee on Family Issues, where conversations are occurring regarding how best to meet the unique needs of family law cases. Fran is a past chair of the Family Law Section of the Colorado Bar Association, past president of the Colorado Chapter of the Association of Family and Conciliation Courts (AFCC), and a former Domestic Violence Task Force member. She also serves as a Peer Professionalism Assistance Group member to encourage professionalism amongst attorneys across all disciplines.
Krista and Fran’s conversation touches on many issues facing family courts, including the lack of problem-solving between attorneys in family law cases. Fran shares the work her Peer Professionalism Assistance Group is doing to help attorneys manage conflict and identify cases that need faster intervention. She is a strong advocate for a court system that meets people where they are, which has led her to work to make changes in Colorado toward a better approach Having worked for decades as an attorney in hundreds of family law cases, Fran also shares her insights on the negative impact divorce has on children and parents and what her dream court model would look like. Finally, she shares with Krista how conflict manifests in children and discusses how good problem-solving techniques between attorneys and parents can benefit kids, helping parents navigate divorce in a far more healthy way.
Keeping kids front and center in a divorce can help create the best outcomes for them, and Fran Fontana has spent her career making children and families a priority. Don’t miss this episode for a peek into the future of Colorado family courts and how a dedicated family court can be a picture nationally and internationally of how to help children flourish despite divorce by fixing the divorce court itself
In this episode, you will hear:
- Fran Fontana’s proactive path to family law and her varied career experiences
- The use of “custody” when discussing parenting time and assignment of parental responsibilities and the negative connotations “custody” evokes
- The importance of identifying cases that need intervention faster and creating better outcomes for families
- Reasons why family courts need to meet people where they are and recognize the nuanced issues that impact families and in particular children
- Fran’s work to make changes in family courts in Colorado and how problem-solving has evolved from earlier in her career
- Why advocating isn’t the same as problem-solving
- The divorce industry’s negative impact on children and families
- Fran’s dream court model and what she proposes for better family outcomes
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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The Family Court Fix: Improving Family Court Justice with Fran Fontana Podcast Transcript
Fran Fontana 00:00
In terms of Family Law, I think we have a higher duty, because we are dealing with people in conflict, and we need to be role models for how you can effectively manage conflict, and that’s the piece that’s missing in a lot of what I see with Family Law Bar.
Intro/Outro 00:21
Welcome to the Children First Family Law podcast, our host Krista Nash is an attorney, mediator, 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. Today’s guest on the podcast is Fran Fontana, another superstar attorney and thought leader in Colorado. On this episode, she shares her passion for doing family law better, in particular through her advocacy for the creation of a dedicated family court. Friends’ vast accomplishments include serving as a member of the Colorado Supreme Court Standing Committee on family issues, where she has been instrumental in advocating for thoughtful change to best meet the unique needs of family law cases. She is also a past chair of the Family Law Section of the Colorado Bar Association, past president of the Colorado Chapter of the Association of family and conciliation courts, and former member of the domestic violence task force. She also serves as a member of the peer professionalism assistance group to encourage professionalism amongst attorneys across all disciplines, not just family law. We hope you enjoy this episode.
Krista Nash 02:04
Well, welcome everybody to today’s episode of the podcast. I am so happy today to have with us Fran Fontana, who is an amazing attorney in Colorado. Who is really a thought leader and has graced us today with her presence. Thank you so much, Fran for being here. I’m excited to talk to you today.
Fran Fontana 02:22
Well, thank you very much for that great introduction and for asking me to participate.
Krista Nash 02:28
Yeah, I’m really excited to hear, first of all, a little bit about your background. So just let’s start with that. Like I always think it’s interesting to know how people got into this work, because most of us came at it in sort of a roundabout way. So what was that story for you?
Fran Fontana 02:41
Okay, well, I was a psychology major in undergrad, and was thinking that I was going to go the route of being a family therapist, and one day I won’t go to the background of it. But I thought, huh, what if I go to law school? It really was that my mother-in-law wanted my husband to go to law school, and he did not. So I said, Well, what if I go to law school? And so I did, long story short, and all I ever wanted to do was practice Family Law, because it was a blending of where I started. And then, I didn’t love law school. It was a means to an end. Didn’t like being how competitive lawyers were and that aspect of it. So I thought things will be different in Family Law. So that was in 1987 when I became a family law attorney.
Krista Nash 03:29
I see too, by the way, I’m kind of peeking around in your bio. I see you grew up in Evanston, Illinois, which is where I went to college.
Fran Fontana 03:35
It’s a great town growing up. I loved growing up in Evanston, and it’s beautiful. And, yeah, the Midwest is great,
Krista Nash 03:46
Other than the freezing cold lake effect stuff. Other than that, I totally concur that it was a great place to go to school. And it’s Evanston’s grown a lot, but when I was there, it’s a little smaller, but it’s still, it’s such a good Town and Gown place, you know?
Fran Fontana 04:01
So, yeah, it’s wonderful. And I went from there to the University of Iowa, where I met my husband, okay? And then ended up in Denver again because it was the only place we could agree on. So we came to Denver, went to law school in Denver, and have been here ever since I started law school.
Krista Nash 04:19
Okay? So you’re like, a lot of people kind of fall into Family Law later. I know I did, you know, I didn’t go to law school and think, Oh, I think I took one Family Law class in law school, but you were more purposeful in that…
Fran Fontana 04:31
Yes. And I was fortunate that I could do it my whole career. I mean, like, my first job was as a Family Law attorney, so it was awesome.
Krista Nash 04:39
So you practice in Denver after that, right? So tell us about your early career. Did you work at a smaller firm, or what was your practice like?
Fran Fontana 04:47
I started out working for a couple of solos, and then I went to work for Bob Hines, and I was there for a couple of years. Then I left his firm to go out on my own, but within six months, created Quade, Fontana & Bonin with Barbara Quade and Al Bonin. Okay, and we ran that for 10 years until Barb decided to go into ADR. Al was moving back to the East Coast, so they kind of abandoned me. So it was me and the associates. And so then I was on my own, and now I am of counsel with Feingold Horton. And Jennifer Feingold was one of the associates that we hired at Quade, Fontana & Bonin, so she was one of our associates. We hired her out of law school. So it’s kind of come from full circle, where I was the boss, and now it’s her firm, and I’m of counsel to her, but I’ve been a mentor to her and Lorna, since they started their firm.
Krista Nash 05:47
You’ve done a good job, because I’ve been a CLR on cases that Jennifer is on, and we have always worked well together, and she’s also a very good mediator, so yeah, shout out to her. She’s well respected. And as a little funny aside, you know, I’m very short, but she’s actually shorter than I am, which is, you know, like, very shocking, because I’m really short. So anyway, I say with all love, so that’s neat, though, that you can have that sort of full circle experience with her. So when you were practicing, did you have a type of case that you enjoyed the most? Or, like, what were your frustrations or the things most in Family Law. That’s a big question, but tell us a little bit about your practice in those years.
Fran Fontana 06:26
Okay, you know, I’ve done all the things right? I’ve been Chair of the Family Law Section. I’ve been, you know, President of the associated groups, but I love the AFCC. There was MDIC, there’s AFCC, the combination of the social science professionals and the attorneys that cross over and the exchange of information that is so critical, I believe, to Family Law attorneys to do justice to what we’re doing. So because of that, a lot of connections with the mental health community, a lot of referrals, cases involving children, cases involving mental health issues, substance abuse issues, those types of things involving children. So kind of always been drawn to cases involving children, like when it was child custody, and then it became parental responsibilities, and Al Bonin, who was my partner at the time, worked really hard on that legislation to change the language and take the ownership piece out of addressing children’s needs in divorce cases. And we, all, you know, assisted on that. And so I would say that although, you know, I love the financial pieces, the high asset cases and stuff like that. And I’ve been doing it so long. I do those too, but I tend to be my referral base, and the cases that I get tend to involve the parental responsibility of these issues people with children.
Krista Nash 07:55
I think it’s really interesting, too, that you just mentioned this piece. I try so hard to not use the child custody language for the same reason. It’s like, it’s not a dog people. We don’t own this thing, right? This is a human.We don’t need to use the word ‘custody’. But it’s difficult, because, as I’ve been doing the podcast and working on my own firm and website and things like that, I get feedback constantly from all these marketing people. That is what people are googling, right? Right? Yeah, constantly looking for custody. So I feel that, you know the fact that is what people call it, even though I completely agree that it’s a broken term that, yeah, if anybody sees that in my labeling of anything, you claim the marketing team.
Fran Fontana 08:35
Well, again, it is hard when you’re dealing and I know that you deal with a lot of the ASCC people. You know, it is custody in other places, and so sometimes, you know, we’re like, well, everybody gets what that means. But when that change came into play in Colorado, the idea was, you know, I’m married 42 years, and I raised two children and not been through a divorce, but we had a parenting plan. We just never had to write it down, right? Never had to beatit up, but everybody has a parenting plan. So if your client comes in and you say, what we need to do is we need to have a parenting plan at the end of the process that’s in writing. So talk to me about how you allocated… so the language speaks well to talking to clients, if attorneys would just learn to talk to clients the right way.Like, how did you allocate these responsibilities? Who did what? You know? I tell everybody this funny story that you know, and I think my husband is, but was a great dad and great partner in raising kids. We were both working, you know, but was I a primary? Sure? Like, I was the woman and I remember the story when I was in court, and my husband had to drop the kids off at daycare, and then the daycare was calling me at the end of the day, and they were like, you know, the band’s there. Your daughter’s not at getting on the bus, we don’t want to send them to leave yet. And I was mortified, absolutely mortified. I. Because my daughter had an after school activity. So I called my husband, and I’m all on fire, and I’m like, so what you didn’t put in the book that you know she had blah, blah, blah, blah. And he very calmly and very forthrightly said, oh my, you didn’t remind me. Oh, I was about to blow and then I got, Okay, that’s fair.ecause I was the one that did that. I was the one that kept track of that. I was so mad, yeah, that was an allocation of how we did things. And I use that example, and I like that exam, like, you know, there are certain things and you know that. So let’s start with that as a baseline. I mean, it has to change, obviously.
Krista Nash 10:37
Yeah,it’s a good way to describe it to people.
Fran Fontana 10:39
So if you can get people focused on how they live their life and how their life is going to change, yeah, so that’s why I do a lot of those kinds of cases.
Krista Nash 10:49
I love that. I noticed that you’re on…. tell us a little are you still doing this peer professional assistance group?
Fran Fontana 10:57
I am. I mean, the group isn’t as active as it used to be. So what that is, is that there are ethical rules that guide attorneys, and that can be a formal process. Professionalism is something that is really just, can we all behave, and can we all get along, and can we do things nicely? And so I’ve actually been on that for a long time, and like pre COVID, what we try to do is kind of act as mediators. But if two attorneys are having a problem, like an attorney can call and say, Hey, we’ve got this other attorney who’s not treating me well, or we’re stuck on this or stuck on that, that’s initially how it started out. And we would say, Hey,, let’s gra a a bite together. I’m going to sit down with I talk to each of them, let’s have a cup of coffee together, because a lot of times when attorneys are sharing space, they’re nicer to each other than when they’re shooting off emails or they’re talking on the phone or they’re filing pleadings. What happened over time, unfortunately, and this is probably part of the genesis of why I think our court system needs to adjust, is that we started getting referrals from judges who were saying referring people from their courtroom to our group because of what they were seeing playing out in their courtroom, which wasn’t necessarily unethical, but was certainly problematic In terms of professionalism. Additionally, like I said, the advent of emails has been horrific for the issue of treating people well and professionalism. I counsel clients about it all the time, and so I was then counseling lawyers. Like, here’s what you need to do. There’s a difference between responding and reacting. You’re reacting. Response means you take a break and you contemplate it, and you thoughtfully respond,
Krista Nash 12:47
Instead of the smoke coming off your key board as you’re hitting back, which, right, I have been guilty of as well. I mean, I’ve got a couple fresh ones that probably could have used some phone calls instead of both directions, instead the emails tend to skew in a negative way sometimes. So I mean, the judges were referring you said, yeah.
Fran Fontana 13:07
And you don’t get tone in an email. But I mean, so that was the piece of it. But in terms of the judge referrals, it was the stuff that people were putting in pleadings and the way that people were behaving in the courtroom, which was a concern to certain judges who were more proactive about the area of Family Law. And this was not just in the area of family law, right? So the peer professionalism group is just the entire bar. Oh, okay. But in terms of family law, I think we have a higher duty, because we are dealing with people in conflict, and we need to be role models for how you can effectively manage conflict. And that’s the piece that’s missing in a lot of what I see with Family Law bar, and I think that part of that is because of the system that we’re working within. Some of it is people that want a lawyer instead of really helping people. But there’s so many factors. Krista, I could go on forever.
Krista Nash 14:10
Let’s pivot to that, because I want to hear there’s other things I want to ask you about just from your background. But you know, one of the main reasons I wanted to bring you on at this phase in the podcast, I know you and I spoke back at the Family Law Institute when I was just announcing that I was going to be launching this, and you had done your presentation about a dedicated family law court, or family court, and I kind of pinned you in the corner and said, Will you be on my show, my non-existent show. Will you be a guest? Right? So, but interestingly, as I was sharing, as we were preparing for this, I’ve been able to interview some amazing researchers and people internationally, people who are really a lot of our AFCC people from the national organization, who are really frontline dealing with the psychology of what’s happening, the crisis that people are in, and then also some really wise judges who have done a lot of work in trying to really navigate, you know, how do we identify cases earlier, like, how do we really meet the needs of these families so that people can flourish? How do we do that earlier? What is the role of attorneys in that? I had somebody recently say, I think it was Dr. Sullivan who said that attorneys should be first responders, not Gladiators, right? So that’s one issue would be interesting to hear your perspective, and the first responders need to show up and handle this well, and that the system that forces everybody through one funnel and treats them all the same way is inherently missing. Like, if you think of it as a cancer diagnosis or an oncologist, we can tell which cases have like they’re going to be fourth stage really soon, just from looking at them, and they need to be treated differently to have better intervention sooner, and then others don’t need that. Then we also have the problem of all the shifting judges, and just, I get so crazy in Colorado every like two years, like everybody we’ve trained up to do a good job in this is gone, right? So that’s what I mostly want to talk to you about today. So you just take this wherever you want to go. In terms of, I think there is national and international impetus toward this idea.Even things about the rules we use in terms of, like Arizona, I know, for example, does this opt in and opt into the rules instead of opting out of the rules of evidence and things like that. And so you have been really frontline here in Colorado thinking about this, and so I’m excited that Colorado is thinking about all these issues, because it really does align with what’s going on around the world and nationally, about really kind of trying to do better for families. So give us the history of where this is in Colorado. I don’t know if you have a national perspective or just locally, but either way, like, what’s the purpose and what have the hang ups been? You know, where we’re going.
Fran Fontana 16:45
Okay, so a little bit of background about my passion for that is my involvement with the AFCC, which has been for a really long time. And I wish I could tell you the first conference where this came up, but it was more than 20 years ago, I’m sure. But what I like about the AFCC is you go to their national conferences and you find out about all the wonderful things that people are doing all across the world, and how many different ways there are to get people from point A to point B in a legal process, right? So at the time, I remember it was something, it was either Australia or New Zealand, and they talked about, literally, where they had judges that actually traveled to the places to deal with cases, instead of, you know, people coming to them, and they talked about their process. And I started thinking, yeah, there’s a better way to do what we’re doing. And this was pre or around the time of even 16.2s in Colorado. That’s how long ago it was. There was a study at one point where they did a white paper, and a lot of people worked on this, and I think it was Al Bonin at the time. It might have been Barb Quade, but I think was Al Bonin who was part of that group, and they traveled back east and they did this whole thing. And the conclusion in Colorado is, God, we’re doing things so great. And I was so frustrated, and I thought, well, like, as compared to what right? So 16.2s was an attempt to get the court system to understand that there’s differences in terms of, you know, it was the first time that we saw that couples are in a fiduciary relationship to one another. You have a duty to disclose and all of these things.
Krista Nash 18:26
And let me just pause really quick for those who don’t know what that is. So 16.2s is another shorthand we use for the rule number regarding this high, high duty of disclosure to one another, that you had this marriage or relationship together, that you have assets and debts, and so therefore you have this higher than normal duty, really, to disclose fully so that we can have a fair outcome in this. I think that, I guess, a fair summary of it, you can share that if you want to. When did that come into effect? I don’t even know.
Fran Fontana 18:59
Trying to remember long time ago, because right now they’re creating a new set of rules for family court cases, and that’s been drafted. There’s an attending a meeting on Monday to talk about some feedback on behalf of the Family Law Section. I am in the process of reviewing it. It’s a lot, but so my frustration became so that was something on the financial side, like, be forthcoming, you know, share information. The other piece of it, with regard to the AFCC,is you meet these wonderful social scientists who are doing great research and the brain research and the trauma research. And, you know, I went to a conference recently in Colorado about neurodiversity and how that comes into play, both with our clients who the age of some of them, they are these things, but they’ve never been diagnosed as such, because in that time, like in my era, people weren’t diagnosed right being on the spectrum or having, you knowanxiety disorders and things like that, the way that they are now. So it informs us on how to work with our clients, and it informs us on how to focus our clients on working for parenting plans for their children who might fall into these categories as well. So all that to say Krista, that no two Family Law cases are the same. So why does our court system just run them through the same processes, the same procedures? And keep in mind that the majority of cases coming through our legal system are people without attorneys.
So you know, I would go to status conferences with clients. And so after 16.2s which I think the purpose of, was to take a more individualized, hands-on approach to managing the case through the system, I had a lot of hope for that. And I thought that judges would, you know, be looking at this particular case, what do you guys need? You know, they’d find out, is there a special needs child? Is there issues of substance abuse, all that at the initial status conference. Some judges did that. Lot of judges had their spiel. And you come into the courtroom, they would be talking, and they’d go, Oh, you look like reasonable people. You know, it would be better for you if you could make these decisions yourself, and which, okay, it is better for families to resolve it than to end up in front of the judge, r right? But I’m sitting next to a woman who’s a victim of domestic violence, and she’s listening to a man with the robe who’s basically telling her, you guys both look like reasonable people, and you know, you should be able to share time with your kids evenly. And I can, like, see my client just everything going away, and then I leave the courtroom with my client and my clients, like, oh, so I should disagree to that, because it sounds like this is a judge who isn’t going to listen. And I’m like, Well, I don’t think that’s what you should take away. And I’m like, right? That is what they’re taking away. So we need to meet people where they are. We need to have a court system that meets people where they are. We need to have people that are making these decisions for families that know about trauma, and that know about child development and that know about substance abuse, that know about cultural issues that impact the way people raise their children, that know that maybe a 45 minute commute in rural Colorado is not a big deal, but maybe it is more difficult for a child in the metro area. I mean, it’s not a one size fits all situation. So we need a court system that allows the judges to learn about the parties and learn about this case. Are there cases that can just slide right through? For sure, there’s a tension in the system currently between judges who want to get cases closed and lawyers and mental health professionals that are saying, we need a little bit of time, because this person will get there. But I mean, I see it in my clients. I can see what a difference me initially talking to them about some of these issues is and what it’s like 90 days later, when I’m chatting with them and working with them and getting them to focus. I attended a CLE yesterday,
Krista Nash 23:28
I was just gonna say this, say it. I was like, they’re talking about this year thing, and, oh, we got to get the case done in the year. Is that what you’re talking about?
Fran Fontana 23:36
Yeah, and what I loved was, and I’m going to name drop Jane Irvine when she said, you know, the emotional part of the brain is one side, filling out a sworn financial statement and dealing with data is the other side, and if one person is still really highly emotional about the breakup of the marriage and having to go from potentially being a stay home mom to having to work again, or having to share the time and do all these things, take a beat, give up time, let them get there. What’s the hurry?
Krista Nash 24:09
Like on the CLE I too had to pause and reflect that these judges, I mean, they’re all well-meaning. They’re under different pressures than we are, but they’re saying maybe we should be changing our directive that these cases have to be done in this amount of time. I mean, they take a solid year most of the time, anyway, a lot of them. But, you know, I’m sitting there from a child advocacy perspective, saying it sort of rocked me a little bit, I guess I’d say, because I’m like, Whoa, we need much more active case management to come back to navigate this family a really careful way with I mean, that’s almost always the solution is some type of mental health, therapeutic underpinnings that come in and that takes time for children. I mean, these are not robots, like we started with. They’re not this is not ownership of a custody situation. And so that shook me a little bit too. So, and then also just the problem of, like you were saying before, do. The training of the judges. I mean people literally. There are so few people on the bench who have an understanding of Family Law. This is one across the board.
Fran Fontana 25:07
There was a point in time and a certain governor who will remain nameless, who really only appointed district attorneys to the bench, and it took a while, but some of the nominating commissions, you know, figured that out, and they knew that the way to not have it be somebody that was a prosecutor was to not give three names. You know, none of the three names would do that. But what happens with that is two things. One is they’re immediately conflicted out from sitting on a criminal bench because they would have a conflict of interest on some cases that come and secondly, zero training on Family lLw, maybe some of the mental health stuff as it crosses into the criminal side, but certainly not Child Development parenting issues, I mean. So then the bench started to turn that way, and it got harder. And sometimes families need a long time, but they need an initial contact with the court to stabilize things, like to understand, you know, and kind of so it is that active hands on case management.
So through ASCC, I became aware of all the different ways that people were doing this, so we started talking about it in Colorado, right? So in many different ways, I worked with a group, handful of people several years ago to put together some legislation and see if we could propose some legislation for a dedicated family court. I am currently serving on a subcommittee of the Colorado Standing Committee on Family Issues, which is a committee under the spearhead of the Supreme Court. So I’m on a subcommittee where we’ve been working really hard to try and make some changes, and some changes have come across right like there’s now special DR judge training, and we’ve included a lot of the you know, like trauma informed thinking into that training. But it’s not mandatory, not all the judges get it. It’s been slow in rolling out. I mean, it’s certainly better than not having it available. So now we’re working on proposing a different way for the court system to run. So I’m trying to come at it from as many ways as I possibly can. There is a subcommittee from the Family Law section that is working on it, which includes, I’m on that, but I’m not as active in that. It includes a lot of people. I don’t know if I should be naming them or not, but they have been working really hard just to see. Can’t we just understand that we shouldn’t just be, you know, doing formal discovery, and we shouldn’t just be setting this for trial and that, you know, sometimes like, so back in the day, I’m going to date myself. Really old courthouse in Jefferson County.. When if I had a case with another attorney, we could say, yeah, kind of stuck on this. My client’s really stuck on this. My client’s really stuck on this, whether it was financial or a child issue. We meet at the courthouse. We’d walk into the clerk’s office and we’d say, hey, judge so and so got a minute, because we’re stuck on something, on a case, and if we could just have a few minutes to kind of bat things around, we might be able to avoid having have a two day trial, right? Oh, let me check with the judge, you know. And of course, we would check and make sure their docket was clear. Whatever. We’d go in. We’d spend 15-20, minutes we chat itup. We, you know, like and without doing anything untoward under the rules, like so you know, my clients this, and my clients that you know, and it wasn’t adversarial, it wasn’t his client is doing this, and it was problem solving.
Krista Nash 28:54
It’s problem solving.
Fran Fontana 28:56
And hearing from the judge allowed us to walk out the door, talk to our clients and get the case settled, right? And we lost that ability to do that because we’ve got bulletproof courtrooms right now and unfortunately needed, right, judges aren’t accessible like that. Some judges feel like having those conversations prevents them from then being able to hear the case. Sometimes we would get Hey, so and so down the halls available you want to go talk to them? Yes, I’ll go talk to them. And there’s now a huge tension between the bench and the bar that is so disheartening to me from where I was in my career, where it wasn’t like that, where there’s this push-pull, and then I sit in some courtrooms and I look at what some lawyers are doing, or I get these referrals from the peer professionalism thing, and I see the pleadings, and I see what lawyers are doing, and I’m like, no wonder they hate us, right? Like, so I’m like, in the like. Blow it all apart, right? Like, let’s make sure that we have to have lawyers that are specially trained. Let’s have judges that are specially trained. Let’s give it a process where it is a problem solving environment, where the goal is to problem solve. Now, problem solving courts are a term of art, right? So we can’t really say a problem solving court, because there are problem solving courts for veterans and mental health issues and more on the criminal side, but that is what we’re focusing on in terms of something that is more oriented to guiding families through the process and assisting them in finding resolution. And if that gets exhausted, then you can certainly have a hearing with a judge and have your issues decided.
Krista Nash 30:52
There is so many interesting things you said there. I mean going back to what you’re saying about this problem solving, where you could just go to the courthouse and it’s fine. You and I, if anyone’s watching this on video, you and I are both like, bathed in sunlight, like angels. It’s like late afternoon, and the sun is beating down on both of us, in our different offices. So, you know, I clerked for a magistrate judge in federal court who was super problem solving, and so I learned sort of this active judicial role, and he’s now a mediator and is just retired and is continuing to do that great work. So I come at it that even though I didn’t have that same experience as you did, which would have been beautiful to have in family courts, I do believe that the best judges are really problem solvers, and we do have some people who are really great problem solvers, still, they do more active case management, they set more status conferences. And I do think it makes me reflect a little bit on my role, and sort of this emerging role of doing CLR work, Child Legal r\Representative work, because while you’re not going to a judge, at least you have somebody who’s out listening to everybody, and then just kind of coming back with some sanity, hopefully. And I keep saying to people like, don’t be a CLR if you aren’t a good negotiator, and if you’re not trying to be that role, you know that’s the best role for CLR is to be a sounding board for everybody, to not be against anyone, but be really attempting to navigate this in a way that can bring some problem solving to it. So I think maybe that’s why it’s taking off a little bit more, since we don’t have the courts doing that so much, but that still doesn’t get us far enough, because, you know, the way our system is set up is so adversarial and litigious.
And I think to your point, you know, it’s not just that the judges don’t have this training like attorneys don’t have this training like most of them are not participating in the AFCC in these great conferences. Most of them are not listening to the mental health professionals, and they’re just doing their like litigation thing, and I think they believe, and they’ve been trained to do it this way, and they think they’re doing it well for clients, because it’s just the way they’ve been doing it. But there is a real dearth of, like, what children need, attachment. I mean, I’m just recording also podcast today. I’m looking into sobriety stuff, and I’m reading this, like, beyond addiction book. And at the Family Institute, we had Stephanie Tabashneck do that wonderful keynote, and she’s been doing background with me, and we’re doing that. I’m doing that podcast as well. And the idea that attachment of children needs to be prioritized over just the way we’ve been handling our regular sobriety approaches in terms of bring people, you know, that was, like, earth shattering, right? Because we’re just like, close it down, litigate it right?
Fran Fontana 33:24
So I’m honestly interested in people and, you know, and the thing is that I come up against this a lot with other lawyers who feel that we’re supposed to advocate, and if you’re advocating that’s somehow at odds with problem solving, and I’m like, No, it is a terrific interface. And here’s the thing, Krista, I love to go to court. I mean, I think I do good when I’m in court, but guess who doesn’t? My client, because it’s a hard, difficult process, it’s costly, and judges, they’re making decisions like this with both hands tied behind their back, with four hours of information within the rules of evidence. I mean, I said early on in my career that if I have a contested case with regard to children, there has to be an expert. There has to be. It’s now called a Child and Family Unvestigator (CFI). Back then, we hodge podged it, and I did that work back then, and or a Parental Responsibility Evaluation (PRE).
Krista Nash 34:32
You all on that rules committee and all the things you’re doing, which I do want to hear more about, I still have huge problems as a CLR, getting this evidence in. They will not let me get it in. I am not an expert, so I am having to jump through all sorts of circus hoops to get this in. And it really is a problem because there is an addition of reliability that should allow for it to come in. It’s a big problem because we’ve got this great new role that, like, actually really helps get children’s voices. In, but you’re not letting it in unless I go through all the same ridiculous, you know, hoops that are just I get it when you’re trying to block it from hearsay. Because the whole idea of hearsay is that we want to have reliability in our courtrooms. But when you have independent CLR reporting, you know, I’m being asked to do things like, what do you want me to do? Hire an investigator to come with me to interview the kids so they can write a report. Some countries do Voice Of The Children reports.
Fran Fontana 35:25
I was just going to say, That Voice Of The Children that I know that they’re piloting in northern Colorado. That is part of the problem, and that’s part of the need for a new court system, right? But I was like, I want somebody providing information that actually saw my client as a parent, right? That actually knows who this child is, the other parent as a parent, and actually, usually that additional information helps us to problem solve, right?
Krista Nash 35:55
I know that as I was doing CFI work, it was becoming so ridiculously over the top toxic. I get asked all the time to do work product reviews, which I just didn’t do. I refuse to do them. That’s like a whole nother problem like that is traitorous.
Fran Fontana 36:10
That gets me to like what I was gonna say. Unfortunately, at some point in the process, the divorce industry became a huge profit motive. That’s for many, many people who lost the focus on the point of what we’re doing now. Are there, CFIs, PREs, that don’t always get it right 100% of the time? Yes, it’s an imperfect science, but the data is usually good, right, right? And it’s not nothing. And so I get it. If you want to dispute that, a CFI did a report and then said, you know, it should be every other weekend, from Friday to Monday, and you want to try and get it from Thursday to Monday, and is there really data to support that? It you can’t add the Thursday. Okay, let’s have a conversation about that. Shall we? Let’s not say they got it all wrong, and let’s not spend more money on a work product review than this poor court appointed professional was able to make by doing the initial report to tear them apart, to make it more adversarial, by going to court right like we’ve lost the focus. But there is the divorce industry. I don’t have the current data. It was probably 15 years ago. I went to a program where the speaker had quantified the amount of money that people spend in the divorce industry, and it’s grown. I mean, we have divorce financial analysts. We have, you know, parent coaches, parent coaches, understandable in many respects, divorce coaches. We have, I mean, like we have so many people that want their hands in the pie, and what we really need is for everybody to back off and to get to understand this family and their needs and what services and what professionals can assist them in figuring out how to move to the next phase of their life? Yeah, exactly. And for attorneys, it’s hourly work, right? So, you know, we’re going to build billable hours. You know what the hardest thing for attorneys to do is to actually have conversations with their clients when they’re really emotional, and to learn about the stuff that may not be able to be introduced in court, but will help you figure out how to work this case through the system. And you know what? That’s the most important stuff. That is the most important stuff. So I know that there’s a lot of models where attorneys turn over the day to day hand holding. They call it I don’t call it that to their staff. They don’t develop a relationship with their client. They set it for mediation, through a mediation process that’s limited or that they know won’t get results, because they’ll make more money by going to court,
Krista Nash 39:01
We prefer to negotiate at mediation. I’m like, can we not just settle this by the conversation over a cup of coffee? And I think we could. Because, by the way, you and I are both mediators, or right? Should have the heart of being able to mediate this. We know it better. We know our clients better. We should know it better and well, you know, mediation makes a whole bunch of lawyers a whole bunch of money, right?
Fran Fontana 39:19
And I both a mediator and an attorney that participates in the process, and I am beside myself at the lack of preparedness, yes, that attorneys do with their clients going to mediation, that I don’t get a mediation statement, that when I’m in a room having a conversation, a client, another attorney’s client, says no one ever told me that. Like,
Krista Nash 39:44
I’m hoping to create some like, demand here for a better attorney through this podcast. I mean, those attorneys should be fired. I mean, seriously, like, if you don’t have an attorney that’s prepping you well in advance and helping you understand making settlement offers and trying to get as much done. And prior, I go back to the federal working for the federal judge. I remember being in a courtroom with him, and it was this initial status conference on an age discrimination case. And we’re always talking about how attorneys are so bad, you know, I was just out of law school then, you know, it’s like, how can you be a better attorney? You know, he instant messaged me, you know, don’t do that, do this, don’t do that. You should be objecting, you know, that kind of thing. But I remember so clearly that he looked at them both because he said, How old is this person? And the attorney, the plaintiff’s attorney, is like, I’m not sure. He’s like, it’s an age discrimination case. Can we at least have our basic facts about our clients down, you know? So it’s like, Do these people know the children? Do they know their names? Do they know their ages? Do they know anything? Like they come in, I meet you too, and I get these people who are like, they don’t want to settle it. They’re just checking the box.
Fran Fontana 40:44
So if the system is changed, and it’s more hands-on, and there are conferences along the way, it kind of forces the attorneys to have to be involved and to understand that. And again, it’s hugely beneficial to all the people that are going through the court system without attorneys, right? And it actually could cause some people to, if there’s this systemic change, to be more comfortable having attorneys, because there’s a lot of people that aren’t hiring attorneys, not just because they can’t afford it, because they don’t see the value to it, and because they might not be able to afford it if attorneys are so focused on making money as opposed I always tell my clients, I’d rather work 10 cases than work your case 10 times more than I have to. But I have no control who the other attorney is exactly. I have no control over who the judge is going to be and how they’re going to be so that’s all the genesis for why I think we can do it better. And you know, there are attorneys and there are judges, like you said, where you know they let you do status conferences and you can talk about things ahead of time. And then there are some lawyers that I cannot get them to do a thing unless we’re a day away from having to interface with the court at a status conference. And it’s like, really, I mean, or I’ll say, you know, I sent you a settlement offer two weeks ago. Can you tell me when I might get a response? Oh, I think we’re waiting on some information. I said, Well, the only information that you requested from us, we provided three weeks ago, like you don’t even know your case and, yeah, so it’s very frustrating.
Krista Nash 42:30
So also, and some of those status conferences, the very best judges who do it the best, allow for this easy exchange of information between people. You know, it’s always entertaining when you get a judge like that, and then you have a litigious attorney who is losing their marbles over the fact that, you know, what kind of circus is this? You know that, for example, if I’m CLR and I have a psychologist on, I’ll bring that person potentially onto a status conference, just to give a little update, right? And they’re like, wait a minute, we didn’t do a witness disclosure. This isn’t a hearing, you know, but it’s a fundamentally broken approach, because the insight that psychologists can just provide briefly can help us to get to the next phase of the case for the family again, why rules need to be different. Because I understand in our current system why a lawyer would object potentially to that kind of approach for a variety of reasons that we learn in law school and all the rules and all the rules and all the things, but it’s just fundamentally screwed up based on meeting a child’s needs and meeting his family’s needs. Because they’re probably like, Your Honor. How many times do you hear status cards your honor? Can I say something, you know? And no, no, they’re an attorney, you know. They’re just an attorney. No, no, no, no, you know. And they’re just like, can I just mention like, they just want this solved. They don’t want to be there. I completely agree with you.
Fran Fontana 43:41
And like I said, if we’re modeling poor conflict resolution, then how are these people going to learn how to manage their conflict and to co parent when we’re acting like such fools, and we’re not demonstrating that people can have disagreements and it doesn’t have to be hostile, it doesn’t have to be angry. I mean, there are attorneys that I have conversations with and I’m like, Yeah, I don’t see it that way. But you know what? You know I understand your argument, and maybe we just have to have a court decide, or maybe we could do this, or maybe we could do that, I mean, or to be able to say to a judge. So here’s the thing, we keep talking about this. We’re making progress. The progress is slow. If you could just give us another 60 days, as opposed to, in another case, where I’ll go, we need some more time, because you haven’t been responding. Okay, let’s see if we can get 60 more days. We file a step. We get 60 days. And after 50 days, I’m going, Are you going to respond to my past learning plan? Are you going to respond? It’s like, hello, so. And I think that if the system, the court system, were different, if the judges were better trained, if the processes could be different, if there could be a court conference at the beginning, if there were mental heath professionals, part of the team, a mediator, part of the team, and everybody’s just kind of going through and so not Collaborative Law, because that’s a specific term, and you have to opt out of the court system.
Krista Nash 45:15
I will say that I have a whole podcast for Terry Harrington about Collaborative Law, very much a term of art. So go back and listen to that one if you are curious. But that’s why we can’t just it is a collaborative thing, but a Collaborative Law is a separate thing. I call it Cooperative Law. Triaging it, because not everybody needs Yes, right, correct. How does this work? What would your dream proposal be? And then, like, where are we in the process? Like, are you all gonna hit it and go to the legislature again and like, and I’m also curious, does this look like one building and one set of judges? Are we talking about in each jurisdiction you have a judge who’s texted a team or something that’s part of the family. New family thing. What are we calling this family?
Fran Fontana 46:00
The legislation that we attempted, created a new judicial district with judges assigned to them, but judges in different districts. Like, it wasn’t like y’all have to come to one place, but it was a chief judge for all of the people that were doing domestic and there may be, like, one judge in one area that travels the circuit, which actually happens in Colorado right now, anyways, in some places.
Krista Nash 46:30
And then would the judges be on that dedicated longer?
Fran Fontana 46:34
Yes. So, the legislation, I think, talked about the judges five years and they could opt out after five years and special training and all of that. So what happened with the legislation, quite honestly, is that State Judicial was not happy with it. And it went nowhere. So I am working on a committee with a lot of people from state judicial, like I said, this other committee, and we are building a model. We’ve finally gotten to the point where we are building a model to present. I don’t know what will happen with it. It’s based on some stuff that’s happening in Massachusetts. Like all things, there’s issues of funding. So right now, what we decided to do, and on that particular committee, is to build a model and ignore all of the pushback, knowing what the pushbacks are going to be like. After we create it, we’ll then try and problem solve funding and all of that, because it involves bringing some professionals into the judicial system, if you will, to have people that are part of this team. So that is a different approach and would be a different process. And so the judges that are assigned to family court would have a different process and a different way of managing the cases, as opposed to which, again, like a pushback might be that, for instance, in the First Judicial District in Colorado, the judges all sit on a diversified docket, right? So they don’t specify your family court judge, you’re a civil court judge, right? Some of the other districts do assign it that way. So understanding that in some judicial districts, this is going to be a harder plug and play, if you will, but this concept is creating a different process, where judicial officers, like, we’re not changing the court system, if you will. We’re not creating a new district. We’re not creating a new brain, you know, type of court?
Well, we are creating a different type of court, but, I mean, it is and again, working on getting some of the adversarial stuff kind of minimized, doing the triage, doing more trauma, informed work, trying to assess, take the time to assess early on, what does this case and this family need, and then, do we? Does this family then go this way because they got it all figured out? Does this family go this way because it’s only financial? Does this family go this way? I mean, like really try to fit the resources to the family right as part of the process, which we think will be a better experience for everyone. You know, I don’t think judges are happy having to make these kinds of decisions on the type of information that they receive. I think that they get a lot of information in what attorneys file that really doesn’t get them to what they need to know in order to make these important decisions. So I think that we just need a wholesale structural change from the ground up. I’ve explored on committees, specialized family attorneys and attorneys having to go through a specialization process, which, at first, early on in my career, I thought was insulting and awful. And now I’m like, perhaps that would help.
Krista Nash 50:16
So what’s the status of it? What happens next? You all are in committee still, and this is the Supreme Court Standing Committee.
Fran Fontana 50:23
So the Supreme Court Standing Committee, yeah, so our committee will make a recommendation to the Supreme Court Standing Committee, who will then present it to the Supreme Court. That’s that avenue, right? And then the committee that’s under the Family Law Section, I mean, they’ll report out, I think, from the Family Law Section. And then also, I mean, the thing is, you have to have a buy-in at so many levels to move anything forward in terms of a judicial process, right? Like you need to buy in judicial- you need the budgetary stuff out of the legislature. You need to buy in the bar, like attorneys. There’s going to be a lot of pushback in each of these areas in which we’re trying to move things forward, which are not the same things being moved forward. And you know, Colorado has piloted a lot of things, and so at one point, one of the committees I was on was, maybe we should design a pilot. But here’s the thing, they piloted a triage in, I think it was the 18th udicial District that actually produced really good results, and then it died on the vine because there was nobody to do it. The judges rotated and they weren’t interested in it so it didn’t die because it wasn’t effective. And so that’s the problem with piloting, right? Like you pilot it, and get the data. You know, it was helpful, which is why we think there needs to be a structural change. So will it happen in my lifetime? I don’t know. It certainly will now.
Krista Nash 51:51
I mean, I want it to happen now. It’s like it’s so obviously needed.
Fran Fontana 51:54
Not before I retire, but I do think the product of these committees will become available and will be out there within a year or two.
Krista Nash 52:05
Do you think there’s baby steps that could at least help? Think we’ve started some baby steps, like, I mean, just like, you know, like rules, like, what do the rules address this at all?
Fran Fontana 52:15
Some of it. I mean, it’s more about how this isn’t just any litigation case. So we need to do things differently. Like I said, we’ve changed a lot of training. We’re trying to do a lot more bench bar communications, you know. So I’ve seen changes. But am I satisfied? Oh, no. Is there a lot of work to be done? Yeah. But I think that, like I said, some of it, I feel like the attorneys could do themselves a service by reflecting and doing what we can do while we’re trying to force the judiciary and the legislature to give us a different structure to do it within.
Krista Nash 52:54
I mean, that is part of why. I mean, I have no idea who will listen to my podcast and where this will land, but that is my heart, that it just seems like there’s so many wonderful people working in family law. We sometimes can get so twisted in the way we do it. We’re lawyers. We’re trained that way. We get adversarial. And there is such an opportunity, even just for all of us. I think if we can learn more, know more, that we can reflect on how to do it better, we can still be forceful advocates, oh yeah, clients and have really good outcomes, but do it in a way that’s more informed in all the ways and and also, just like we keep saying more problem solving earlier on, because it, I mean, I just got off a I have a new client who has a spouse Who is got some alcohol issues, and so before that person lawyers up, I’m like, Hey, can I have an opportunity to talk with you? Right? Please, go look at my website, go listen to my podcast. Like I’m not the enemy. I know this is weird. Your friends are going to say it’s bad to talk to me, but, you know, let’s give it a shot, right? And we had such a nice conversation. You know? I’m like, I’m really not out to get you. Let’s just come out and problem solve and figure out how you guys can do this together. We can put your case on hold. We can do, you know, breathalyzers. We can do this. We can do that. We don’t have to make this a war. I’m not here to make it a war. I know you love your children. Your children need you both, you know. And I’m sure she’s leaving that conversation suspect, just because I have awyer” labeled across my forehead. And there are so many opportunities for us to problem solve,and that really impacts these children so much. And the individual parents.
Fran Fontana 54:32
Wwe know for a fact Krista conflict is bad for children. o when we can get our own clients to kind of step back a little bit and understand that their efforts to be protective is still exposing the children to conflict, and there might be another way of doing it. That’s our job, right? That’s what we should be doing.
Krista Nash 54:56
I wish I could take these parents with me on these home visits, which, again, I keep beating this. Horse of if you’re a Child and Family i\Investigator, any kind of best interest attorney or a PRE, you better be doing in person, home visits like this whole idea that you don’t have to do that, which is super common right now, I just think is like malpractice. Honestly, it’s like, Are you kidding me? You cannot get that. You cannot get this without going into the home, right?
Fran Fontana 55:18
You know what’s so funny about that is, like I said I used to do this before there was a statutory role for doing it. Like I get a call from a judge that would say, Hey, I’m appointing you on this case, and I want you to settle it. But yeah, yeah. And I would think to myself, How do I know what I’m looking for? And then you go, when you see children in this place, and you see children in this place, you know what you’re seeing, and you know what you’re seeing that’s different. And if you’re not doing that, you’re missing out on information. You’re missing out.
Krista Nash 55:52
I mean, and literally, like, I met with four children separately in each of their rooms and sat on the floor and brought my little dog with me, and, you know, did the whole thing. And these kids are crying and sharing, and I can see what’s in their rooms. I can see their, the way that they present and the way that they… just the whole thing. But what I was going to say is that one of these little kids said to me, young kid, you know, 10 or 11, something like that. She said, You know, I was looking at through her tears. I was looking at YouTube the other day, and II saw a video about Parental Alienation. I mean, and you and I both laugh out loud, right? I’m like, wow, really, you found that on YouTube. That’s amazing that you happen to find that on YouTube, right? You said it just like that. You know, this little innocent thing, she’s in her little school outfit, and she’s sitting there with her like little knees back on her floor, crying and these big cries. But I watched a video on Parental Alienation on YouTube that I found, and then you see her kind of looking around, and she’s like, and I I saw a document from the court, you know, that had what people, what my mom or my dad or whatever was saying about the other parent, and she’s just crying, crying, crying. And I’m like, you don’t really seem like a kind of snooping kind of kid, you know. Like, is that really what happened? You know? And, of course, I mean, give me a break, right? I didn’t fall off the turnip truck yesterday, you know. And I’ve got to call the parents and be like, knock it off, you know. And, you know, I had a dad just acknowledge to me, well, I mean, I feel like I don’t get to see my kids, and I need them to know what she’s doing to me. And I’m like, Do you not understand, like, what that does to a child. You know, you have to have to stop so we could talk all day long. And you know, I’ve just busted our time, but I am hopeful. I’m so pleased to hear that these efforts are being made by people like you and all the other people here in Colorado, because it’s so important. We have so much work to do to improve the way that we manage this for families, and even if we all individually took a little more responsibility to be more professional, to realize that this isn’t a civil case that the businesses get to just walk away from each other or the you know, the people in a business fight. It’s a co-parenting dynamic where this family has to continue on. Just take that responsibility more seriously. I think the families would be better off. I know you share that sentiment, so…
Fran Fontana 58:03
Yeah, I do, and I appreciate your interest in it, and it’s going to take all of us moving it forward. Like I said, I wear bangs because my forehead is bloody from beating it against the wall for so many years, but I’m going to continue as long as I can, and, you know, probably not before I retire. I joked the other day and I said, Okay, I’m going to retire in two to three years, so then I can, like, maybe volunteer some time to be one of these court professionals, if we have this system in place, and somebody on the committee went, really?
Krista Nash 58:40
Why that’s a good idea. Why don’t you just go run it? You’re that kind of person. Why don’t you go run for office or do it in the legislature, you know? Well. Fran, thanks for doing this with me today. I am grateful. As you have more updates and things are moving along, maybe we can talk again, because, you know, it’s an evolving thing, and it is as you see, and have more insight just let’s continue to share it with us.
Intro/Outro 59:05
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