In 1997, legislation was enacted to enable the
Court to appoint a special advocate to investigate, report, and make
recommendations on any issue affecting the best interest of a minor
child. By statute, the subject matter and scope of the advocate’s
duties must be clearly set forth in the Court’s order of appointment
and requires that an advocate file a written report. The advocate
may be either an attorney or a mental health professional, and may
be called to testify as a witness regarding his or her
recommendations. There is no authority in the statute for the
appointment of another advocate to provide a supplemental report in
the event one party is dissatisfied with the advocate’s
recommendations. However, in at least one case, a Court has approved
a stipulation for the appointment of an additional advocate to
prepare a supplemental evaluation and make recommendations.
One of the main reasons for the legislation
permitting evaluations by advocates was to provide a cheaper and
more effective alternative to the long-standing procedures for
evaluations pursuant to C.R.S. §14-10-127, herein referred to as a
parental responsibility evaluation or a "127" evaluation. A "custody
evaluation", as it was once known, is an expensive process that only
a trained and licensed mental health professional can perform. By
statute, evaluators must address specific issues whether doing so is
of particular relevance to a specific family or not. The 127
evaluator is not only required to prepare a written report, but the
report must include very specific information and analyses again as
outlined by statute. A party can request a supplemental 127
evaluation if dissatisfied and, except under certain limited
circumstances, the Court is required to grant such a request.
When performing a "116" investigation, a special
advocate is not required to follow the same procedures as a parental
responsibility evaluator. The advocate is permitted to investigate
only those areas that are of relevance to a given family’s
situation, one of the reasons that 116 investigations are less
expensive than parental responsibility evaluations. The advocate
does not have to be a mental health professional, or any type of
professional at all. In practice, the investigator may wear a
variety of hats and influence the course of the family’s divorce at
any point in the process. Depending on the duties specified in the
court order, an advocate may function as an evaluator, a negotiator,
an arbitrator, a special master, a parenting coordinator, a
communication specialist, and/or an expert witness advocating for
the best interest of the child. In practice, it would appear that an
advocate could make recommendations and assist the parties
immediately upon appointment. When the special advocate statute was
first made available, those performing "custody evaluations" as
special advocates had to choose between performing parental
responsibility evaluations the old way, or performing an abbreviated
version of an evaluation to keep the cost down. Attorneys had to
decide if they were qualified to perform evaluations previously done
by mental health professionals only. Judges had to decide if the
abbreviated investigations performed by special advocates were as
reliable as 127 evaluations, particularly when parental
responsibility and parenting time were at issue.
We have now had five years experience with the
special advocate role and the investigations that have been
performed. What has evolved is a tendency for special advocates to
short cut the process of a parental responsibility evaluation with
impunity. Many advocates have chosen to circumvent the requirements
of C.R.S. 14-10-127 when rendering opinions regarding parental
responsibility and parenting time, the very issues that the
legislature deemed important to protect by 1) imposing
qualifications upon those performing custody evaluations, and 2)
requiring evaluators to address specific issues before rendering an
opinion.
Because of the poor quality of some special
advocate investigations, many legal and mental health professionals
are now questioning the appropriateness of allowing advocates to
express opinions regarding parental responsibility and parenting
time when they have not done the type of fact-finding and analysis
required by a 127 evaluation. If an advocate makes recommendations
before performing a thorough analysis, it is thought that he or she
might be doing a disservice to the Court and the children they are
appointed to protect. Due to the lack of due diligence on the part
of some advocates, we are seeing a movement back to 127 evaluations
to safeguard against this problem.
But should this be? Should we go back to using
C.R.S. 14-10-127 to define the issues that an evaluator or
investigator must evaluate when addressing the issues of parental
responsibility and/or parenting time? Or should we take a different
path that requires more of special advocates than we currently
do?
The evaluation of parental responsibility and
parenting time requires of the evaluator/investigator psychological
sophistication that most, if not all, attorneys have not obtained as
a result of their training and experience. These evaluations are the
most complex of all forensic evaluations performed by mental health
professionals. It only makes sense that professionals who opine
regarding parental responsibility and parenting time meet the
training and experiential requirements of C.R.S. 14-10-127.
Whether a professional so qualified should be
required to evaluate all of the areas defined by C.R.S. 14-10-127
may be another story. Perhaps a change in the law is in order that
would allow evaluators and investigators the discretion to leave out
certain areas if obtaining the information were to result in costs
that cannot be justified given the circumstances of the family being
evaluated. Similarly, costs could be diminished if the
evaluator/investigator were given the discretion of reporting on
only those issues of relevance to the issues before the Court
instead of all of them. Fifty page reports would become fifteen page
reports, which would save the family the cost of preparing 35 pages,
and the time it would take legal professionals and supplemental
evaluators/investigators to read them.
Perhaps we should require special advocates to be
appointed as 127 evaluators whenever asked to express an opinion
regarding parental responsibility and/or parenting time. But what
about the potential problem associated with an advocate serving as
an objective evaluator and a special advocate at the same time?
Wouldn’t advocating for the child and serving as an evaluator impair
the advocate’s objectivity? Wouldn’t this create the appearance of a
conflict of interest? And what about the interventions a special
advocate might make during the course of an evaluation? Wouldn’t the
advocate’s actions alter the family dynamics and not allow him or
her to see the family in its "true" state?
A parental responsibility evaluator is required by
statute to make recommendations in the best interest of the child.
So is a special advocate. Does conflict exist if a special advocate
is performing a parental responsibility evaluation leading to
recommendations made in the best interest of the child?
It is true that interventions made by a special
advocate would be likely to alter the family dynamics during the
course of a parental responsibility evaluation. Does this mean that
the advocate does not obtain a "true" picture of the family as a
result? Hardly. The performance of a parental responsibility
evaluation by itself alters the dynamics of a family. No family
undergoes a parental responsibility evaluation in its "true" state
for this reason. Parents typically present information in the best
possible light for their case and in a manner that encourages the
evaluator to accept his or her notion of how things should be post
divorce. Parents typically consult with their attorneys who tell
them not to get angry when they are because showing anger,
especially toward the other parent, is something evaluators frown
upon. Parents also talk to their therapists, family members,
friends, and clergymen about the evaluations they are going through,
and make behavioral changes as a result.
But wouldn’t the same thing happen if a special
advocate were appointed to perform a 127 evaluation? Absolutely. The
difference is that the special advocate who intervenes may have an
opportunity to see the parents and children in action over a longer
period of time with regard to a greater number of issues, at least
in those cases in which the advocate continues to work with the
family post decree.
The parents and children generally interact directly with the
advocate in a "truer" fashion than they do with an evaluator because
1) they view the advocate as someone they can turn to for help, not
as someone who will simply judge them, 2) there is more opportunity
for the parents and children to develop a professional relationship
with an advocate, 3) it is harder for family members to hide when
they are involved in activities that are not simply evaluative, and
4) they know that the advocate may continue a relationship with them
post decree. A special advocate is often able to see the members of
a family and their dynamics more clearly than an evaluator because
of the variety of roles that the advocate plays.
In the age of simplified dissolution and one expert
per case, the advocate seems to be the logical progression and
current trend. We must make sure, however, that special advocates
perform investigations sufficient to provide the Court, the
attorneys, and most importantly the families, responsible opinions
based on professional competence and thoroughness.1C.R.S.
14-1-10-116(2)(b); also referred to as a "116"
investigation.
