Overview

“Legal power,” is, “the ability to shape the laws of society. On the surface, big corporations have formidable legal resources that intimidate opponents (Steiner & Steiner, 2005, p.56).^[1] On a deeper level, the laws of the United States —including constitutional, civil, and criminal laws— have been shaped by the consequences of industrial activity.”^[2] Perhaps, more pernicious and less suspect than "big corporations" may be industry consortiums, disguised as non-profits, professionals, lobbyists or other seemingly benign entities.

One such consortium has managed to infiltrate a state’s Supreme Court rule-making committees, engage in traditional lobbying efforts for the advocacy of favorable legislation benefiting its constituents, forge alliances within the federal court and, generally, enjoy a closed-loop marketplace where it has established demand for itself and supply is already guaranteed. The industry is divorce and the commodity is children. The consortium consists of court-appointed “experts,” assigned many labels: parenting time coordinators, special advocates, child and family investigators, custody evaluators, decision makers, visitation supervisors, arbitrators, mediators, and lawyers. The marketplace is the state court system of Colorado.^[3]

In Colorado —as elsewhere in the country— divorce is big business.

The consequence of the latter decades of unrestrained divorce is the creation of a growth industry with a vested stake in promoting, rather than ameliorating, marital dissolution acrimony.^[4] In the United States, divorce and custody comprise over half of civil litigation, creating employment and revenue for divorce industry “experts” (hereinafter, “DIEs”). What began as a phenomenon of social upheaval, divorce has been transmogrified into a vast government bureaucracy with systemic symbiosis with the private sector.^[5] In most Colorado domestic cases, the appointment of a divorce industry “expert” is mandatory.^[6] Concomitantly, this controlled market has allowed DIEs to thrive, like a non-native species with no natural predators and, which has undermined the principals of pluralism that American industry and democracy are based upon.^[7]

That, which has given rise to the inextricable intertwinement of government and private in the context of divorce litigation in Colorado may be attributed to any number of possible reasons, including: a lack of a family court system in Colorado; judges' aversion to the disputatious nature of divorce; the dramatic increase of pro se involvement in divorce litigation;^[8] overwhelming caseloads (despite limited resources); ^[9] or the fact that efficient docket management is a key metric of judicial performance reviews,^[10] which is greatly enhanced by delegation of fact-finding to third-party neutrals. Whatever the causes, what is certain is that “the position of the court’s supporting services is so significant, that court-appointed special masters, mental health professionals and third-party neutrals’ opinions are almost always adopted by the courts.”^[11] In the context of domestic relations matters, this has been acknowledged in Colorado’s Supreme Court Chief Justice Directive 04-08 as, “a position of influence over a family’s future.” ^[12] Although most of the professional literature seems to minimize the potential for abuse of this position of influence, a growing body of evidence indicates that the power that DIEs possess by virtue of statutes and a systemic lack of accountability has resulted in a culture of corruption, egocentric elitism and, perhaps, even extortionate or criminal conduct that the divorcing parent would never have contemplated.

The typical divorcing parent, who may have had no previous experience in the courtroom, is likely to expect both that courts are impartial finders-of-fact^[13] and that DIEs are professionals subsisting on meager salaries, whilst answering a noble vocation of working with children. The optimism exists, despite the public’s noteworthy distrust of the legal profession.^[14] DIEs certainly have a vested interest in applauding the purported effectiveness of the domestic relations litigation process and in aggrandizing the judiciary, to whom they owe their livelihood.^[15] Unfortunately and, despite the DIEs protestations to the contrary, such optimism on the part of parents is misguided. Those, who are unable to divorce amicably and, therefore, must submit to the courts for resolution, should, instead, be disabused of naïve, charitable or wishful ideologies and prepare for the very worst.^[16]

In fact, parent-litigant candor and compliance with each step of the process may lead to their ruin: For example, one of the first steps in the marital dissolution process is the submission of an Affidavit with Respect to Financial Affairs. If it becomes thusly apparent that the parties have realizable assets, a host of DIEs will invariably be assigned to the case (seemingly proportional to the available assets, until they are depleted by the experts; the attorneys; or both).^[17] The Affidavit will also become a source, “of valuable information about the party’s finances,” for DIE’s, in the event that fee and collections disputes should arise,^[18] despite that this information has now been sealed from the general public (including ordinary judgment creditors).^[19]

Further, as reported in the Department of Regulatory Agencies “2003 Sunset Review,” the types of individuals, who take on these cases, do so because they are exempt from regulatory oversight and civil liability.^[20] Perhaps, a parent might want to know what kind of person would seek out assignments that are exempt from plenary review? If the divorce process is so unpleasant that, “Mental health professionals who accept these appointments are thrust into situations in which one of the parties is likely to be unhappy with the outcome,” (Id.) what motivates one to accept such an assignment? As suggested in the previous paragraph, the likely motive seems to be pecuniary. If this proposition is credible, then Colorado’s legislators have, by creating the

exemption for DIEs, unwittingly invited the most corrupt and exploitive among the mental health practitioner community into positions of decision-making power over the lives of thousands of children and their parents. Trial judges seem unwilling to exercise oversight, because, as noted above, they are only too eager to offload the unsavory tasks of divorce litigation to whoever is available.^[21]

Aside from symbiotic and economic motivations, the weight and sufficiency of information provided by experts in domestic relations litigation has been particularly open to debate.^[22] Frequently, evidence that lacks reasonable scientific backing is presented to the courts as though it had scientific merit.^[23] “The problem is well illustrated when a court-appointed neutral, who may have excellent courtroom presentation style or academic credentials, is actually incompetent. The court, relying on someone believed to an expert, actually receives poor advice that the court does not have the expertise to ascertain.”^[24] Some in the Colorado professional community have at least tangentially acknowledged the same, opining that, “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 [the more comprehensive Colo.Rev.Stat. § 14-10-]127 evaluation.”^[25] Yet, the statutory model’s shortcomings are not accidental; they the fruits of successful lobbying.

Lobbying (or more precisely, “influencing legislation”) is discussed by Steiner & Steiner (2005, p. 69) under the heading of “Social interest groups” power. It is defined in Section 4911 of the Internal Revenue Code (IRC), in pertinent part, as: “any attempt to influence any legislation through communications with any member or employee of a legislative body, or with any government official or employee, who may participate in the formulation of the legislation.” A tax-exempt organization attempts to influence legislation when it, “Contacts or urges the public to contact members of a legislative body for the purpose of proposing, supporting, or opposing legislation; or Advocates the adoption or rejection of particular legislation.”

The political and philosophical justification for lobbying precedes our Constitution — James Madison covered the subject in The Federalist Papers, essays written with Alexander Hamilton and John Jay to encourage the states to ratify the Constitution. However, one populist theory posits that permitting interested parties to provide advice on public policy involves a conflict of interest. Such conflicts might lead to distortions in the “objective” advice needed for sound public policy and, thus, should be restrained. If the public interest is to be protected, as the theory goes, special interests (particularly, business-related special interests) should be disallowed from influencing the process.

The formation of special interests groups for collaborating mental health professionals and attorneys in domestic relations law in Colorado is an expected phenomenon.^[26] Arguably, it fulfills the “Dominance Theory,” which posits that "organizations grow in size and concentrate wealth . . . [and] . . . abuse[] the power its size and wealth confer. Steiner & Steiner (2005) at 61. However, their collective lobbying objectives seem to primarily focus on enhancements to revenue collection and immunity from liability (both suit and licensing board regulation).^[27] These objectives are zealously pursued by three primary groups in Colorado: The most influential of these is the Metropolitan Denver Interdisciplinary Committee (MDIC). The more diverse group, with the largest member count, is the Family Law Section (FLS) of the Colorado Bar Association. A third was the Colorado State Interdisciplinary Committee (CIDC).^[28] The three groups extensively overlap, not only in membership, but also in joint-sponsorship of gatherings and symposiums. Other groups, such as the Boulder Interdisciplinary Committee, do exist but, wield much less influence and appear to be unofficial local “chapters” or affiliates of the MDIC.

The MDIC is active in lobbying efforts to enhance revenue and eliminate accountability for its member’s base. The MDIC meets once per month for a luncheon/seminar held at the Four Points Sheraton in Denver and they sponsor or co-sponsor annual symposiums held at exclusive mountain resorts. One parent of a now-defunct parents’ rights grass-roots organization attended MDIC meetings and reported that the focus of the meetings was almost always revenue enhancement, collection, enforcement and limitations of liability.^[29] Another attended and later opined, “I've attended these sessions as a parent and purchased the taped "classes". The primary topic discussed is how to collect their fees, nothing about Best Interests of a Child.” A review of a typical MDIC monthly luncheon event schedule seems to support the parent’s assertion:

Although the MDIC jealously guards its membership roster, this author has learned that more than two-thirds of the Colorado Supreme Court’s Standing Committee on Family Issues and the Committee on Ethical Issues in Family Law is staffed by MDIC members. The Other Professionals Subcommittee of the Standing Committee on Family Issues drafted the special advocate standards, which were published as Chief Justice Directive 04-08 (as amended Nov. 2005), meaning that special interest group members of the MDIC contributed to writing what has essentially become “law.”

Another group was the CIDC (formerly COICC and now the CCAFCC). It’s Web site described the organization as:

At least one third of the Supreme Court Committees on Family Issues and Ethical Issues on Family Law are staffed by CIDC members, most of whom are also MDIC members. The CIDC Board of Governors was staffed by judges, the DIEs they appoint and family law attorneys, who practice before them.

The third group is the Family Law Section of the Colorado Bar Association. The FLS Web site describes that organization as:

The lobbying arm of the FLS appears, in essence, to be the MDIC, based upon a review of several of the meeting minutes of the FLS Executive Council. Therefore, it can be fairly asserted that the objectives of the FLS are those of the MDIC. However, the collusion between these two groups may be more complex than suggested here. For example, the FLS did not support a bill that contained immunity for parent coordinators and, which reflected a prior vote of the FLS Executive Council.^[31]

In contrast to the organizations described above, there are no effective Colorado special interests groups of appreciable size representing divorcing parents or in opposition to the special interests groups representing the DIEs and divorce attorneys. Rather, a variety of relatively ineffective and small grassroots organizations consisting of disenfranchised parents have cropped up here or there over the last several years Grassroots lobbying, defined by IRC 4011(c)(3), involves contacting the general public instead of the legislators themselves.^[32] Few of these groups have persisted and, they have posed little more than an annoyance to the DIEs and family lawyers’ consortium.

Although a myriad of speculative reasons may explain the reasons for a lack of organized opposition to the divorce industry and family law consortium, the most logical may be that the process of divorce is not a profession —i.e., divorcing parents are transitive, in need of special-interest advocacy for a relatively short duration. While it is generally accepted that their attorneys (if they can afford counsel), should provide such advocacy, the attorneys are actually constituents of or beneficiaries of the divorce industry and family law consortium. Whatever the reasons, children and parents in the divorce process have no constituent members on any of the Supreme Court committees or aiding in drafting the Chief Justice Directive for CFI Guidelines or drafting legislative proposals (especially, whereas most bills are drafted and edited by attorneys). There are no parents’ groups known to this author, who have occasion or opportunity to hold luncheons with local judges and magistrates to share the issues and viewpoints of parents with the local bar.

The absence of balance, equity, integrity and justice is disquieting. James Madison concluded that, on balance, lobbying groups are essential to any real democracy and that constraints, if needed, should be achieved by encouraging full competition among groups and by implementing checks and balances through law and other means.^[33] In this industry, there is no competition among groups, because there is no voice for the parents and children. Special interest groups representing DIEs do more than “influence the process:” They define the process. They drive the process. They are the process. As a consequence of their control of this market: DIEs are able to charge two or three times the market rate for many services; there is no mutual contractual assent (because their services are court ordered); parents cannot discharge an incompetent DIE (or even complain about the quality of services, lest he or she may lose custody or access to the child[ren]); their fees are “in the nature of child support” with all of the associated draconian enforcement mechanisms; ^[34] the courts are readily willing to incarcerate slow-paying or no-paying parents (or deprive contact with the children on that basis); ^[35] DIEs are exempt from both suit and regulatory oversight; and DIEs have no advertising costs or collection costs. It’s a business model that even James B. Duke would have envied.

[1] Steiner & Steiner, 2005. Business, Government, and Society: A Managerial Perspective, 11^th ed. (McGraw-Hill).

[2] Id.

[3] Although this phenomenon is common through the U.S. and western nations (see, e.g., Diebel, L. (January 14, 2008). Unqualified mediators prey on broken families. The Toronto Sun.), the essay is confined to an analysis of the state of Colorado.

[4] Grutman, R., and Thomas, B. (1990). Lawyers and Thieves. Simon & Schuster, Englewood Cliffs, NJ. (There are some attorneys who deliberately encourage acrimony, as the financial rewards for them are time dependent. In other words, the more involved the litigation process, the greater the profits for the attorney); See also Steven K. Berenson, A Family Law Residency Program?: A Modest Proposal in Response to the Burdens Created by Self-Represented Litigants in Family Court, 33 Rutgers L.J. 105, 122 n.13 (2001) (suggesting that litigants believe lawyers try to prevent amicable settlements and to drag out cases in order to increase their billable hours); Colorado Supreme Court Civil Justice Committee February 11, 1999 Meeting Minutes (”Presently, the [legal] system as whole pushes attorneys away from service to the system, by driving attorneys into an adversarial mode. The current rules establish built in barricades to early settlement . . . Without outside pressure, a less costly litigation path to determination of a case on the merits will never come to fruition because attorneys are often opting for a more complicated process due to billable hours”).

[5] Jackie St. Joan, Privatizing Family Law Adjudications, 34 Colo.Law. 95 (Aug.2005) at 95; and see Stephen Baskerville, Divorce as Revolution, 21 Salisbury Rev. 4 (Summer 2003) at 30-32.

[6] Section 14-10-127 states that the court "shall" order an allocation of parental responsibilities (APR) evaluation on the motion of either party, unless the motion is made for the purpose of delaying the proceedings. C.R.S. § 14-10-127(1)(a)(I). Notably, there is no exception for a case in which a child and family investigator (CFI) is already involved. Id. Thus, the statute mandates that an APR evaluation be ordered, even if there already is a CFI appointed in that same case.

[7] See, generally, Steiner & Steiner (2005) at 66-69; see also Rossum & Tarr, American Constitutional Law: The Structure of Government (7^th ed., Thomson & West, 2007) at 19 (discussing "the extended republic" as the multiplicity of interests present in the commercial republic as one of the principal mechanisms by which the Framers sought to establish an energetic government based not principle of qualitative majority rule)

[8] Report of the Committee on Pro Se Parties and Civil Justice Reform (“Statistics from the State Court Administrator's Office for pro se filings in Colorado district courts show an increase in the percentage of domestic relations cases filed as pro se from 52.2 percent in 1997 to 55.7 percent in 1999.”)

[9] Results of the Colorado Bar Association 2005 Judicial Survey, 34 Colo.Law. 12 (Dec. 2005) at 21 (discussing impact of insufficient staff and 2002 budget cuts).

[10] See Fact Sheet on Judicial Performance Program, available at www.cojudicialperformance.com; and see Burchett v. South Denver Windustrial Co., 42 P.3d 19, 21 (Colo. 2002) ("We applaud a trial court's efforts to design a case management system that will increase the efficiency of its docket"); R. Brooke Jackson, Joe DiMaggio and You, 37 Colo.Law. 4, 65, n. 2 (April, 2008) ("Under benchmarks currently being considered, district judges are expected to have no more than 20 percent of civil cases and 10 percent of domestic cases open more than eighteen months, and no more than 10 percent of criminal cases open more than one year").

[11] Galatzer-Levy & Kraus, The Scientific Basis of Child Custody Decisions (Wiley & Sons, Inc. 1999) at 4; see also Colo. D.o.R.A. 2003 Sunset Review at 41 (“Judges rely extensively on the recommendations made by these appointees. This is also a reason to instill greater accountability.”

[12] CJF-04-08, Amended Nov. 2005. See also Ryder v. Mitchell, 54 P.3d 885, 891-92 (Colo 2002) (“we agree that there is a risk of injury to a parent when a therapist expresses concern about poor parenting of one kind or another. The risks could include diminished parenting time, or in the extreme case, perhaps a change in custody. Those risks are real and potentially very damaging to the parent.”)

[13] David L. Geislinger, What Price Justice? Why Was Amendment 40 Even on the Ballot?, 36 Colo.Law. 5 (May, 2007) at 77 ("As a general proposition, most Americans likely view justice as 'the quality of being just,' meaning 'fair'; 'upright, honest'; and 'proper, right, [and] equitable'") (citing Webster’s Dictionary of Modern English (1987) at 294); Drew A. Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 Am. U.L. Rev. 1537, 1546 (2006) (“The American ideal of justice is that both the wealthy and the poor can have access to the courts, and be treated equally before it with the resulting decisions being as fair as possible . . . [T]he nonlawyer . . . sees justice in terms of fairness and righteousness. They expect their system of justice, paid for by their tax dollars, to secure the justice they expect. It is a sad commentary, then, when a judge or lawyer confesses (as I have heard on more occasions than I would care to admit) that he or she does not expect justice in the courthouse”).

[14] Laird Milburn, Professional Reform, 30 Colo.Law. 7 (2001) at 51 (sounding an alarm bell regarding the public’s declining respect for attorneys and citing 1994 ABA survey); see also 2006 Harris Interactive® poll, finding lawyers as the least trusted of the 22 occupations included in the survey.

[15] See, e.g., The Role of the Child and Family Investigator and the Child’s Representative in Colorado, First Ed. (Rob’t M. Smith ed., CLE in Colo., Inc., Supp. 2005) § C14.2 (“With extremely rare exceptions, judges in the domestic relations system are conscientious, well-intentioned people, who work hard. They end to be strongly concerned about children. . . .I can count on the fingers of one hand those occasions on, which I believe a judge acted capriciously or without considering crucial facts”).

[16] See, e.g., Linda Diebel, Unqualified Mediators Prey on Broken Families, The Toronto Star (Jan. 14, 2008)

[17] Bill J. Fyfe, Impediments to the Establishment of Collaborative Teams with the Family, Viewpoint (2002) (Discussing his belief in the need for a “team” consisting of “therapists, attorneys and the courts”); see also Fyfe, Divorce and Argument Culture, Viewpoint (2005) (opinin, “When mental health professionals, lawyers and judges are no longer involved with a family, that family is often left without a proper road map to healthy and improved functioning”).

[18] The Role of the CFI and CLR in Colo., supra at D1-8.

[19] See Chief Justice Directive 05-01; see also Huspeni, D. (2006, April 24). Court Cases Need More Accessibility, Critics Say. The Gazette

[20] Id. at 41. (“Repealing the exemption [from agency regulation] would very likely result in a diminishing pool of individuals willing to accept these crucial appointments”).

[21] Id. (“The entire system was originally created based on the premise that the courts would handle misconduct on the part of appointees. However, this is not always the case, as is demonstrated by the receipt by the mental health boards of complaints against parental responsibility evaluators and special advocates filed by the courts. This makes it clear that not even the courts understand whose responsibility it is to deal with misconduct by appointees”).

[22] Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers. New York: Guilford Press, 484 (“There is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious”).

[23] Galatzer-Levy, R. & Kraus, L. (eds.) (1999). The Scientific Basis of Child Custody Decisions. John Wiley & Sons, 5 (“[A] much more pernicious problem is the uncorrupt but inaccurate expert, who presents pet theories and personal prejudices as scientific fact”).

[24] Ira. D. Turkat, Questioning the Mental Health Expert’s Custody Report, 7 Amer.J.Fam.L. (1993) at 175-79 (“[M]any individuals engaged in the business of providing custody recommendations probably have no business doing so”).

[25] Dana Cogan, Albert Bonin, Re-Assessing the Use of Special Advocates, __ Colo.Law. __ (Feb., 2003). Arguendo, even if this opinion is a thinly-veiled call for the more expansive undertaking of a 127 evaluation (as opposed to the much less expensive § 14-10-116 CFI appointment), it is an acknowledgement that sub-standard work is being performed in cases, where concrete and substantial interests are at stake.

[26] Parente, S.L. & Zhao, R. (2006) Development and Special Interests, International Economic Review 47 (3), 991–1011.

[27] See, e.g., February 13, 2004 meeting minutes of the CBA’s Family Law Section Executive Council, noting that one council’s lobbyist-members reported that the MDIC had been working on legislation to eliminate the possibility of DIEs being sued in connection with their involvement in domestic relations cases.

[28] At the time of this writing, this organization is reputed to be in the process of being dissolved and/or subsumed into the Association of Family and Conciliation Courts.

[29] Upon learning of this “infiltration,” by a perceived hostile non-member, the MDIC amended its policy: The monthly luncheon-seminars and annual symposiums are now closed to non-members, unless the non-member is sponsored by a MDIC member.

[30] This author’s research has revealed that most all federal suits against DIEs in Colorado appear to have been assigned to this particular magistrate, who has recommended dismissal on all such suits.

[31] See March 18^th 2005 meeting minutes, available here.

[32] Information sent to constituents which merely refers to and reflects a point of view on specific, relevant legislation is not treated as grassroots lobbying.

[33] Advocacy in America, Vol. 3 Issues of Democracy N⁰ 2, U.S. Dept. of State, June 1998

[34] See In re Miller, 55 F.3d 1487 (10th Cir. 1995)

[35]See, e.g., Taylor v. Stadnyck, Douglas County No. 97DR704 transcript at 138 (telephone contact with child abolished because father's offer to make partial payments, rather than lump sum, to special advocate were insufficient).