New Colorado Parental Responsibility Evaluator Directive

It’s been a long time coming – Child & Family Investigators have been governed by Chief Justice Directive 04-08 for the past 17 years, but the Colorado Supreme Court has been silent on regulating those appointed to serve as a Parental Responsibility Evaluator (PREs). Until now. And it took a new law, HB 21-1228, to make this happen.

Parental Responsibility Evaluator vs CFI

When parents disagree about child custody arrangements, they can ask the Court to appoint one of several types of custody evaluators to investigate, and ultimately assist the trial court in reaching a parenting decision:

• Child’s Legal Representative. Formerly known as a Guardian ad Litem, a CLR is appointed pursuant to C.R.S. 14-10-116 to represent “the best interests of the child.” Although a Child’s Legal Representative necessarily investigates the parenting situation and meets with the children, ultimately a CLR’s role is as an attorney, not a witness, nor an investigator who writes a report for the court.
• Child & Family Investigator. Appointed pursuant to C.R.S. 14-10-116.5, a CFI’s role is to investigate specific parenting issues, and provide a written report to the Court with his/her recommendations, and then testifies at a hearing, if necessary. The CFI may be “an attorney, a mental health professional, or any other individual with appropriate training and qualifications.” Because a CFI is intended to have a narrow role, rather than conduct a broad-based custody evaluation, the CFI fees are also capped at $2750 (in 2021).
• Parental Responsibility Evaluator. Appointed pursuant to C.R.S. 14-10-127, Parental Responsibility Evaluators (PREs) serve a similar role as a CFI, except that a PRE conducts a full custody evaluation, including mental health testing if appropriate, while a CFI is intended for simpler or more limited cases.

Statutory Qualifications for a Parental Responsibility Evaluator

A parental responsibilities evaluation may be conducted by the Department of Human Services, or by a licensed mental health professional who is qualified in the following areas:

• The effects of divorce on families
• The effects of domestic violence, and, as of 1/1/2022, has six hours each on domestic abuse and child abuse training, as well as four additional hours every two years.
• Appropriate parenting techniques
• Child development
• Child & adult psychopathology
• Clinical assessment techniques
• Legal & ethical requirements

The Parental Responsibility Evaluator conducts an investigation, meeting with the parents, children, and then contacting other collateral witnesses personally, or through a questionnaire.

Chief Justice Directive 21-01 on Parental Responsibility Evaluators

In November 2021, Chief Justice Brian D. Boatright issued CJD 21-01, Directive Concerning Court Appointments of Parental Responsibility Evaluators Pursuant to C.R.S. 14-10-127, which incorporates the requirements of C.R.S. 14-10-127, as well as adding more details, much as CJD 04-08 does for CFIs.

The directive was a response to HB 21-1228, which not only contemplates there will be a directive governing Parental Responsibility Evaluators, but added the domestic violence and child abuse provisions and training set forth above, along with this admonition: “The child’s safety is always paramount.”

Definition of “Licensed Mental Health Professional”

Although C.R.S. 14-10-127 requires that a PRE be a licensed mental health professional, the statute does not actually define the term. This has resulted in some confusion over the difference between a license and a registration from Colorado’s Department of Regulatory Agencies (DORA). The directive clears this up, by defining a licensed mental health professional as:

Colorado has mental health professionals who may have state certifications or registrations, but this directive not only makes clear that they are not the same as licensure, but then to avoid any confusion, the directive takes the somewhat unusual step of listing such certified or registered mental health professionals who are not qualified to be PREs:

Note that while any of the above mental health professionals may well be qualified to be a Child & Family Investigator, their qualifications fall short of the stricter requirements to be a Parental Responsibility Evaluator. Moreover, such unlicensed professionals may assist a licensed mental health professional in the investigation, as long as a licensed PRE ultimately is responsible for the report.

Statewide Parental Responsibility Evaluator Roster

This one is new, and probably helpful to family law attorneys struggling to find mental health professionals who are not burned out on PRE appointments – the CJD establishes a new statewide roster of eligible Parental Responsibility Evaluators.

Link to Statewide PRE Roster. Note that the PRE Roster is now available online, however the number of listed experts is still somewhat limited (El Paso County, for example, only has three PREs listed as of 1/24/2022), although as time passes and more mental health professionals complete the requirements, this list will presumably grow.

Conducting Parental Responsibility Evaluation

The PRE:

“may consult any person who may have information about the child(ren) and the child(ren)’s potential parenting arrangements including medical, mental health, educational, or other expert persons who have served the child(ren) in the past without obtaining the consent of the parent or the person allocated parental responsibilities for the child.”

However, once the child has reached 15, the child’s consent must first be obtained unless the court finds the child lacks the ability to consent.

Parental Responsibility Evaluator Fees

This short section simply states that (1) there are no state-paid PREs, and (2) the family law judge has discretion to cap the PRE fees.

PRE Complaints & Sanctions

There are several pages of the directive dedicated to setting forth how complaints against PREs are investigated, and potential sanctions against evaluators for founded complaints, which include undergoing additional training, supervised probation, removal from the statewide eligibility roster, or even a partial or complete refund of the PRE fees!

Evaluator Standards of Practice

The balance of the directive addresses standards of practice, the roles and duties of a parental responsibilities evaluator. Many of these are either already addressed by the statute, or are somewhat common-sensical (e.g. be professional, be objective, etc.), but some of the interesting highlights include:

• The PRE shall not serve inconsistent dual roles. A PRE is the investigative arm of the court, so may not participate in mediation or provide therapy to a party or child
• PRE may serve as parenting coordinator or decision-maker. Once the PRE’s duties are fully completed, it is permissible to transition into the role of a parenting coordinator or decision-maker with the consent of all parties. NOTE, however, that the reverse is not true – a PC or DM cannot subsequently be appointed as a parental responsibility evaluator
• PRE is a mandatory reporter for child abuse or neglect
• PRE shall have written policies for counsel and parties
• No ex parte communications with the Court. But unless I missed it, there does not appear to be an express prohibition on the PRE contacting either of the counsel individually, without notifying the other attorney
• PRE appointment terminates upon entry of order. No never-ending appointments under which the PRE continues to investigate and recommend after orders have been entered.

Some parental responsibility evaluators have already been grumbling about the additional burden of the domestic violence and child abuse training, but hopefully that will not dissuade licensed mental health professionals from continuing to accept PRE appointments. We already have a scarcity of good, reasonably-priced PREs in Colorado, and need every eligible person to stick around!

Finally, here is a link to the state courts Parental Responsibilities Evaluators page, with an overview, statutory references, applications, the complaint process, etc.

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