Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory
Know Your Judge

TCL > January 2006 Issue > Court Business

The Colorado Lawyer
January 2006
Vol. 35, No. 1 [Page  129]

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts

Court Business

Colorado Supreme Court Rules Committee
Notice of Public Written Comment
Written Comments Due February 1, 2006
The Colorado Rules of Civil Procedure for Courts of Record in Colorado
Written Comments Due February 1, 2006

Chapter 1. Scope of Rules One Form of Action, Commencement of Action,
Service of Process, Pleadings, Motions, and Orders
Rule 4. Process
Chapter 25. The Colorado Rules of County Court Civil Procedure
Rule 304. Service of Process
Chapter 26. The Colorado Rules of Procedure forSmall Claims Courts
Rule 504. Service of the Notice,
Claim and Summons to Appear for Trial

The Colorado Supreme Court proposes to adopt and amend The Colorado Rules for Civil Procedure for Courts of Record in Colorado, Chapter 1, Rule 4.; Chapter 25, Rule 304; Chapter 26, Rule 504. An original and eight copies of the written comments on the proposed rule changes should be filed with Susan J. Festag, Clerk of the Colorado Supreme Court, at 2 E. 14th Ave., Denver, CO 80203, no later than 5:00 p.m., Wednesday, February 1, 2006. If adopted and amended by the Court, the rules would become effective immediately.

By the Court:
Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________

Rule Change 2006()
The Colorado Rules of Civil Procedure for
Courts of Record in Colorado
Chapter 1. Scope of Rules, One Form of Action, Commencement of Action,
Service of Process, Pleadings, Motions, and Orders

Rule 4. Process

(a) through (b) [No Change.]
(c) Contents of Summons. The summons shall contain the name of the court, the county in which the action is brought, the names or designation of the parties, shall be directed to the defendant, shall state the time within which the defendant is required to appear and defend against the claims of the complaint, and shall notify the defendant that in case of the defendant’s failure to do so, judgment by default may be rendered against the defendant. If the summons is served by publication, the summons shall briefly state the sum of money or other relief demanded. The summons shall contain the name, address, and registration number of the plaintiff’s attorney, if any, and if not, the address of the plaintiff. Except in case of service by publication under Rule 4(g) or when otherwise ordered by the court, the complaint shall be served with the summons. In any case, where by special order personal service of summons is allowed without the complaint, a copy of the order shall be served with the summons.

(d) By Whom Served. Process served within the United States or its Territories may be by any person whose age is eighteen years, not a party to the action. Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement.

(e) Personal Service. Personal service shall be as follows:
(1) Upon a natural person whose age is eighteen years or more by delivering a copy thereof to the person, or by leaving a copy thereof at the person’s usual place of abode, with any person whose age is eighteen years or more and who is a member of the person’s family, or at the person’s usual workplace, with the person’s secretary, administrative assistant, bookkeeper, manager, or chief clerk; or by delivering a copy to a person authorized by appointment or by law to receive service of process;

(2) Upon a natural person whose age is at least thirteen years and less than eighteen years, by delivering a copy thereof to the person and another copy thereof to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to any person in whose care or control the person may be; or with whom the person resides, or in whose service the person is employed; and upon a natural person under the age of thirteen years by delivering a copy to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to the person in whose care or control the person may be.

(3) Upon a person for whom a conservator has been appointed, by delivering a copy thereof to such conservator;

(4) Upon any form of corporation, partnership, association, cooperative, limited liability company, limited partnership association, trust, organization, or other form of entity that is recognized under the laws of this state or of any other jurisdiction, (including any such organization, association or entity serving as an agent for service of process for itself or for another entity) by delivering a copy thereof to the registered agent for service as set forth in the most recently filed document in the records of the secretary of state of this state or any other jurisdiction, or one of the following:

(A) An officer of any form of entity having officers;

(B) A general partner of any form of partnership;

(C) A manager of a limited liability company or limited partnership association in which management is vested in managers rather than members;

(D) A member of a limited liability company or limited partnership association in which management is vested in the members or in which management is vested in managers and there are no managers;

(E) A trustee of a trust;

(F) The functional equivalent of any person described in paragraphs (a) through (e) of this subsection (4), regardless of such person’s title, under:

(I) the articles of incorporation, articles of organization, certificate of limited partnership, articles of association, statement of registration, or other document of similar import duly filed or recorded by which the entity or any or all of its owners obtains status as an entity or the attribute of limited liability, or

(II) the law pursuant to which the entity is formed or which governs the operation of the entity;

(G) If no person listed in subsection (4) of this rule can be found in this state, upon any person serving as a shareholder, member, partner, or other person having an ownership or similar interest in, or any director, agent, or principal employee of such entity, who can be found in this state, or service as otherwise provided by law.

(5) [Repealed.]

(6) Upon a municipal corporation, by delivering a copy thereof to the mayor, city manager, clerk, or deputy clerk;

(7) Upon a county, by delivering a copy thereof to the county clerk, chief deputy, or county commissioner;

(8) Upon a school district, by delivering a copy thereof to the superintendent;

(9) Upon the state by delivering a copy thereof to the attorney general;

(10) (A) Upon an officer, agent, or employee of the state, acting in an official capacity, by delivering a copy thereof to the officer, agent, or employee, and by delivering a copy to the attorney general.

(B) Upon a department or agency of the state, subject to suit, by delivering a copy thereof to the principal officer, chief clerk, or other executive employee thereof, and by delivering a copy to the attorney general.

(C) For all purposes the date of service upon the officer, agent, employee, department, or agency shall control, except that failure to serve copies upon the attorney general within three days of service upon the officer, agent, employee, department, or agency shall extend the time within which the officer, agent, employee, department, or agency must file a responsive pleading for sixty days beyond the time otherwise provided by these Rules.

(11) Upon other political subdivisions of the State of Colorado, special districts, or quasi-municipal entities, by delivering a copy thereof to any officer or general manager, unless otherwise provided by law.

(12) Upon any of the entities or persons listed in subsections (4) through (11) of this section (e) by delivering a copy to any designee authorized to accept service of process for such entity or person, or by delivery to a person authorized by appointment or law to receive service of process for such entity or person. The delivery shall be made in any manner permitted by such appointment or law.

(f) Substituted Service. In the event that a party attempting service of process by personal service under section (e) is unable to accomplish service, and service by publication or mail is not otherwise permitted under section (g), the party may file a motion, supported by an affidavit of the person attempting service, for an order for substituted service. The motion shall state (1) the efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effective. If the court is satisfied that due diligence has been used to attempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall:

(1) authorize delivery to be made to the person deemed appropriate for service, and

(2) order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery.

Service shall be complete on the date of delivery to the person deemed appropriate for service.

(g) Other Service. Except as otherwise provided by law, service by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem. When service is by publication, the complaint need not be published with the summons. The party desiring service of process by mail or publication under this section (g) shall file a motion verified by the oath of such party or of someone in the party’s behalf for an order of service by mail or publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service and shall give the address, or last known address, of each person to be served or shall state that the address and last known address are unknown. I the court is satisfied that due diligence has been used to obtain personal service or that efforts to obtain the same would have been to no avail, shall:

(1) Order the party to send by registered or certified mail a copy of the process addressed to such person at such address, requesting a return receipt signed by the addressee only. Such service shall be complete on the date of the filing of proof thereof, together with such return receipt attached thereto signed by such addressee, or

(2) Order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made once each week for five successive weeks. Within fifteen days after the order the party shall mail a copy of the process to each person whose address or last known address has been stated in the motion and file proof thereof. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county.

(h) Manner of Proof. Proof of service shall b made as follows:

(1) If personally served by a duly acknowledged statement as to date, place, and manner of service;

(2) [Repealed.]

(3) If by mail, by an affidavit showing the date of the mailing with the return receipt attached, where required;

(4) If by publication, by the affidavit of publication, together with an affidavit as to the mailing of a copy of the process where required;

(5) If by waiver, by the written admission or waiver of service by the person or persons served, duly acknowledged, or by their attorney.

(6) If by substituted service, by a duly acknowledged statement as to the date, place, and manner of service, accompanied by an affidavit that the process was also mailed to the party to be served by substituted service, setting forth the address(es) where the process was mailed

(i) Waiver of Service of Summons. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the defendant.

(j) through (k) [No Change.]

___________________

Chapter 25.

The Colorado Rules of County Court Civil Procedure

Rule 304. Service of Process

(a) To What Applicable. This rule applies to all process except as otherwise provided by these rules.

(b) Initial Process. Except in cases of service by publication under Rule 304(e), the complaint and a blank copy of the answer form shall be served with the summons.

(c) By Whom Served. Process served within the United States or its Territories may be by any person whose age is eighteen years or more, not a party to the action. Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement.

(d) Personal Service. Personal service shall be as follows:

(1) Upon a natural person whose age is eighteen years or more, by delivering a copy thereof to the person, or by leaving a copy thereof at the person’s usual place of abode, with any person whose age is eighteen years or more and who is a member of the person’s family, or at the person’s usual workplace, with the person’s secretary, administrative assistant, bookkeeper, manager or chief clerk; or by delivering a copy to a person authorized by appointment or by law to receive service of process.

(2) Upon a natural person whose age is at least thirteen years and less than eighteen years, by delivering a copy thereof to the person and another copy thereof to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to any person in whose care or control the person may be, or with whom the person resides, or in whose service the person is employed, and upon a natural person under the age of thirteen years by delivering a copy to the person’s father, mother, or guardian, or if there be none in the state, then by delivering a copy thereof to the person in whose care or control the person may be.

(3) Upon a person for whom a conservator has been appointed, by delivering a copy thereof to such conservator.

(4) Upon any form of corporation, partnership, association, cooperative, limited liability company, limited partnership association, trust, organization, or other form of entity that is recognized under the laws of this state or of any other jurisdiction, (including any such organization, association or entity serving as an agent for service of process for itself or for another entity) by delivering a copy thereof to the registered agent for service as set forth in the most recently filed document in the records of the secretary of state of this state or any other jurisdiction, or one of the following:

(A) an officer of any form of entity having officers;

(B) a general partner of any form of partnership;

(C) a manager of a limited liability company or limited partnership association in which management is vested in managers rather than members;

(D) a member of a limited liability company or limited partnership association in which management is vested in the members or in which management is vested in managers and there are no managers;

(E) a trustee of a trust;

(F) the functional equivalent of any person described in paragraphs (a) through (e) of this subsection (4), regardless of such person’s title, under:

(I) the articles of incorporation, articles of organization, certificate of limited partnership, articles of association, statement of registration, or other document of similar import duly filed or recorded by which the entity or any or all of its owners obtains status as an entity or the attribute of limited liability, or

(II) the law pursuant to which the entity is formed or which governs the operation of the entity;

(G) if no person listed in subsection (4) of this rule can be found in this state, upon any person serving as a shareholder, member, partner, or other person having an ownership or similar interest in, or any director, agent, or principal employee of such entity, who can be found in this state, or service as otherwise provided by law.

(5) [Repealed.]

(6) Upon a municipal corporation, by delivering a copy thereof to the mayor the city manager, the clerk, or deputy clerk;

(7) Upon a county, by delivering a copy thereof to the county clerk, chief deputy, or county commissioner;

(8) Upon a school district, by delivering a copy thereof to the superintendent;

(9) Upon the state by delivering a copy thereof to the attorney general;

(10) (A) Upon an officer, agent, or employee of the state, acting in an official capacity, by delivering a copy thereof to the officer, agent, or employee, and by delivering a copy to the attorney general.

(B) Upon a department or agency of the state, subject to suit, by delivering a copy thereof to the principal officer, chief clerk, or other executive employee thereof, and by delivering a copy to the attorney general.

(C) For purposes of service of an initial summons and complaint, the copies shall be delivered to both the party and the attorney general within the times as set forth in rule 312(a). For all other purposes, the effective date of service shall be the latter date of delivery.

(11) Upon other political subdivisions of the State of Colorado, special districts, or quasi-municipal entities, by delivering a copy thereof to any officer or general manager, unless otherwise provided by law.

(12) Upon any of the entities or persons listed in subsections (4) through (11) of this section (e) by delivering a copy to any designee authorized to accept service of process for such entity or person, or by delivery to a person authorized by appointment or law to receive service of process for such entity or person. The delivery shall be made in any manner permitted by such appointment or law.

(e) Substituted Service. In the event that a party attempting service of process by personal service under section (d) is unable to accomplish service, and service by publication or mail is not otherwise permitted under section (f), the party may file a motion, supported by an affidavit of the person attempting service, for an order for substituted service. The motion shall state (1) the efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effected. If the court is satisfied that due diligence has been used to attempt personal service under section (d), that further attempts to obtain service under section (d) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall:

(1) Authorize delivery to be made to the person deemed appropriate for service, and

(2) Order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery.

Service shall be complete on the date of delivery to the person deemed appropriate for service.

(f) Other Service. Except as otherwise provided by law, service by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem. When service is by publication, the complaint need not be published with the summons. The party desiring service of process by mail or publication under this section (f) shall file a motion verified by the oath of such party or of someone in the party’s behalf for an order of service by mail or publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service and shall give the address, or last known address, of each person to be served or shall state that this address and last known address are unknown. If the court is satisfied that due diligence has been used to obtain personal service or that efforts to obtain the same would have been to no avail, shall:

(1) Order the party to send by registered or certified mail a copy of the summons and a copy of the complaint, addressed to such person at such address, requesting a return receipt signed by addressee only. Such service shall be complete on the date of the filing of proof thereof, together with such return receipt attached thereto signed by such addressee, or

(2) Order publication of the summons in a newspaper published in the county in which the action is pending. Such publication shall be made once each week for five successive weeks. Within fifteen days after the order the party shall mail a copy of the summons and complaint to each person whose address or last known address has been stated in the motion and file proof thereof. Service shall be complete on the day of the last publication. If no newspaper is published in the county, the court shall designate one in some adjoining county.

(g) Manner of Proof. Proof of service shall be made as follows:

(1) If personally, by a duly acknowledged statement as to date, place and manner of service.

(2) [Repealed.]

(3) If by mail, an affidavit showing the date of the mailing, with the return receipt attached, where applicable.

(4) If by publication, by the affidavit of publication, together with an affidavit as to the mailing of a copy of the summons, complaint and answer form where required.

(5) If by waiver, by the written admission or waiver of service by the person or persons to be served, duly acknowledged, or by their attorney.

(6) If by substituted service, by a duly acknowledged statement as to the date, place, and manner of service, accompanied by an affidavit that the process was also mailed to the party to be served by substituted service, setting forth the address(es) where the process was mailed

(h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons issued.

(I) Waiver of Service of Summons. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the defendant.

(j) Refusal of Copy. If a person to be served refuses to accept a copy of the summons and complaint, service shall be sufficient if the person serving the documents knows or has reason to identify the person who refuses to be served, identifies the documents being served as a summons and complaint, and offers to deliver a copy of the documents to the person who refuses to be served.

___________________

Chapter 26. The Colorado Rules of Procedure
For Small Claims Courts

Rule 504. Service of the Notice, Claim"
and Summons to Appear for Trial

(a) [No Change.]


(b) Personal Service of the Notice, Claim and Summons to Appear for Trial.

Personal service of the notice, claim and summons to appear for trial shall be in accordance with C.R.C.P. 304(c), (d) and (e), with proof of service filed in accordance with C.R.C.P. 304(g), and refusal of service dealt with as described in C.R.C.P. 304(j).

(c) Clerk’s Service of the Notice, Claim and Summons to Appear for Trial by Certified Mail.

(1) through (2) [No Change.]

(3) Notification by Clerk and Fees and Expenses for Service. If the notice is returned for any reason other than refusal to accept it, or if the receipt is signed by any person other than the addressee, the clerk shall so notify the plaintiff. The clerk may then issue additional notices, at the request of the plaintiff. All fees and expenses for the certified mailing by the clerk shall be paid by the plaintiff and treated as costs of the action. Issuance of each notice shall be noted upon the register of actions or in the file.

Amended and adopted by the Court, En Banc, November 17, 2005, effective immediately.

By the Court:
Nancy E. Rice, Justice
Colorado Supreme Court

________________________________________________________________________

Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: http://www.courts.state.co.us/supct/directives/supctdirectives.htm.

Publication in The Colorado Lawyer

Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted due to space restrictions. To obtain a copy of attachments, contact: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.

___________________

Chief Justice Directive 98-01
Supreme Court of Colorado, Office of the Chief Justice
Costs for Indigent Persons in Civil Matters
Amended November 2005

I. Statutory Authority

Section 13-16-103 C.R.S. provides for an indigent person to prosecute or to defend in a court proceeding without the payment of costs, at the discretion of the judge. In the event that the indigent person successfully prosecutes or defends an action or proceeding, a judgment shall be entered in favor of the indigent person for court costs. If these costs are collected by the indigent person, that person shall pay the court in the amount of court costs which were waived.

II. Indigency Determination

A petitioner or a respondent in a civil case must be indigent to proceed in a court action without the payment of costs. Indigency should be determined by using the attached procedures.

IIII. Costs That May Not Be Waived

Any obligation for payment to a person or entity other than the State of Colorado, which arises in the course of "prosecuting or defending" a civil action or special proceeding is not one that can be waived on the basis of a party’s indigency. Waiver of costs is limited to those fees and expenses owed to the state and does not apply to fees and expenses owed to other persons or entities. Therefore, transcript fees, witness fees, and process server fees cannot be waived by the court. As set forth in Section 13-16-124 C.R.S., if the party delivers the documents for service of process to the sheriff, the court cannot waive the sheriff’s fee. The sheriff must make that determination.

IV. Costs That May Be Waived

If the court determines the person to be indigent, any costs owed to the state may be waived. Such costs would include filing fees, reasonable copy fees, jury fees, and research fees. If the court delivers the documents for service of process to the sheriff, the court can waive the sheriff’s fee and pay such fees from mandated costs.

Done at Denver, Colorado, this 7th day of November 2005.

 

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court

For more information about CJD 98-01 and changes to the corresponding Attachments, contact Gaylene Wagoner at (303) 837-3641 or gaylene.wagoner@judicial.state.co.us.

__________________

Chief Justice Directive 04-06
Supreme Court of Colorado, Office of the Chief Justice
Court Appointments Through the Office of the Child’s Representative
Amended November 2005

The following policy is adopted to assist the administration of justice through the best interest appointment and training of Guardians ad Litem (GALs), attorney Child and Family Investigators and Child’s Representatives appointed on behalf of minors/children (under age 18). Non-attorney Child and Family Investigators, adult GAL appointments and any other juvenile attorney client appointments fall under the provisions of Chief Justice Directive 04-05.

I. Authorities

A. Article 91 of Title 13 established the Office of the Child’s Representative (OCR) and the various statutory requirements of the Office.

B. The Chief Justice Order concerning the "Rules Governing the Creation, Appointment, Terms and Procedure for the Office of the Child’s Representative" (revised October 1, 2003) established that the OCR shall be responsible for the following:

• Provision of Guardian ad Litem (GAL) services in dependency and neglect proceedings under Title 19.

• Provision of GAL services for a respondent parent in dependency and neglect proceedings under Title 19 when that parent is a minor.

• Provision of GAL services in delinquency matters under Title 19.

• Provision of GAL services in adoption proceedings under Title 19 when one or more parties qualify as indigent.

• Provision of GAL services for a child charged or prosecuted as an adult pursuant to Section 19-2-517, 6 C.R.S. (2003) or Section 19-2-518, 6 C.R.S. (2003).

• Provision of GAL services in paternity and support matters brought under Title 19 when one or more parties qualify as indigent.

• Provision of GAL services to minors in alcohol or drug abuse proceedings under Title 25.

• Provision of GAL services to minors in mental health proceedings under Title 27.

• Provision of GAL services to minors in probate proceedings under Title 15 when the parties are indigent.

• Provision of GAL services to minors involved in truancy proceedings under Titles 19 and 22.

• Provision of Child’s Representative and attorney Child and Family Investigator services in Domestic Relations cases under Title 14, when one or more parties qualify as indigent.

• Provision of services in any other GAL, attorney Child and Family Investigator or Child’s Representative appointments where authorized, by statute or inherent authority, to act in or represent the best interest of a minor.

C. State funds are appropriated to the OCR to fund all statutorily authorized appointments, costs associated therewith and the various responsibilities that fall under the purview of that office pursuant to Section 13-91-102(2), 5 C.R.S. (2003).

II. OCR Authority and Responsibilities

A. Prior to the creation of the OCR, the State Court Administrator’s Office, through judicial officers and district administrators, had the responsibility and authority to contract with and oversee the GAL, Child’s Representative and attorney Child and Family Investigator services delineated in Section I.B. With the creation of the OCR, the Colorado legislature effectively transferred all responsibilities and authority relating to said contracting from the Judicial Department to the OCR. The legislature also made the OCR responsible for overseeing and enhancing attorney services. The OCR’s authority and responsibilities include, but are not limited to: ensure and enhance competent representation of children in a cost effective manner, which includes training and monitoring of services rendered; the exclusive authority and discretion to select and contract with attorneys to provide state-paid GAL, Child’s Representative and attorney Child and Family Investigator services, including the authority to reject attorneys for any reason; the authority to terminate, at will, contracts and existing court appointments as determined by the OCR; and the responsibility to provide oversight and accountability for the state-paid GAL, Child’s Representative and attorney Child and Family Investigator services for the benefit of Colorado’s children, including investigation and resolution of complaints regarding attorneys who contract with the OCR.

B. The OCR shall maintain and provide to the courts, on an ongoing basis, a list of qualified attorneys to whom appointments may be given. The courts shall appoint from this list. It is within OCR’s sole discretion to determine which attorneys are placed on the appointment list. A court is not required to use all attorneys on the list but only those it chooses to appoint. It should be noted that the OCR will not process payment for services of attorneys with whom the OCR does not have a contract and who are not on the OCR list. Should any unusual, exceptional or emergency circumstances present the need for the appointment of an attorney not listed as an OCR qualified attorney, the court shall contact the OCR for approval prior to the appointment of that attorney. The OCR shall provide a prompt response to the court’s request.

III. Authority and Requirement for Appointments of GALs, Attorney child and family investigators and Child’s Representatives Through the OCR

A. A GAL shall be appointed for a child in a dependency and neglect action pursuant to Title 19. The GAL’s appointment shall continue until the entry of a final decree of adoption or until the jurisdiction of the juvenile court is terminated either by operation of law or by court order.

B. Pursuant to Title 19, a GAL may be appointed in a delinquency proceeding if: no parent, guardian or other adult set forth in Section 19-1-111(2)(a), 6 C.R.S. (2003) appears at the first or subsequent hearing; the Court finds a conflict of interest between the child and the parent, guardian or other adult set forth in Section 19-1-111(2)(a), 6 C.R.S. (2003); or the Court finds that a GAL appointment will serve the best interests of a child. Such appointment shall continue if a case is transferred to adult criminal court under Title 19.

C. Pursuant to Title 19, the court, in its discretion, may appoint a GAL in any direct file of charges against a juvenile in adult criminal court.

D. Pursuant to Title 19, a GAL may be appointed, unless the child is already represented by defense counsel, in truancy proceedings under Title 22. Pursuant to Title 19, a court may appoint both counsel and a GAL for the child if the court finds that such appointment is in the best interests of the child.

E. A Child’s Representative or attorney child and family investigator may be appointed in a parental responsibility case pursuant to Title 14.

F. A GAL may be appointed for a minor in formal proceedings involving guardianship or conservatorship of a minor; trusts or estates of decedents, minors and protected persons; and in judicially supervised settlements pursuant to Title 15 if the court determines that a need for such representation exists.

G. A GAL shall be appointed in a mental health proceeding pursuant to Title 27 for any child under age 15 who is a ward of the Department of Human Services or for any minor under 15 who objects to his or her hospitalization.

H. If necessary to serve a child’s best interest, a GAL may be appointed for an infant or other minor who does not have a representative and who is a party to a civil suit.

I. A GAL may be appointed for a child in a paternity action pursuant to Title 19.

J. A GAL may be appointed for a minor upon the filing of a petition for involuntary commitment of alcoholics or drug abusers if the court deems the minor’s presence in court may be injurious to him or her pursuant to Title 25.

K. Pursuant to Title 19, a GAL for a minor may be appointed in an adoption proceeding. Pursuant to Title 19, a GAL for a minor may also be appointed in a proceeding concerning the relinquishment of the minor if the court finds that there is a conflict of interest between the child and the parents, guardian or legal custodian; the court finds that such appointment would be in the best interests of the child; or the court determines that the child is twelve years of age or older and that the welfare of the child mandates the appointment.

L. Pursuant to Title 12, a GAL may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to C.R.S. § 12-37.5-107(2)(b) and Chapter 23.5 of the Colorado Rules of Civil Procedure ("Rules of Procedure for Judicial Bypass of Parental Notification Requirements").

IV. Allocation of Cost and Guidelines for Payment by the OCR

A. Allocation of Costs—Requirement of Indigency Finding

1. An indigency determination is not required for state payment of GAL services in matters other than the specific cases listed in paragraphs a through d below.

a. State, through the OCR, shall bear the costs for the services of an attorney child and family investigator or Child’s Representative appointed pursuant to § 14-10-116.5 or § 14-10-116, C.R.S. (2005), respectively, only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under § 14-10-116.5 or § 14-10-116, C.R.S. (2005), respectively,, which specify that the parties are responsible for all costs unless there is a specific finding of indigency.

b. The State, through the OCR, shall bear the costs for GAL services in Paternity and support matters under Article 4 of Title 19 only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under Section 19-4-117, 6 C.R.S. (2003), which specifies that the Court shall order reasonable fees of the GAL to be paid by the parties.

c. The State, through the OCR, shall bear the costs for GAL services in adoption and relinquishment proceedings only when the party(ies) responsible for the costs is deemed to be indigent. The State is precluded from paying for services and any costs associated with GAL services for non-indigent parties under Section 19-5-103, 6 C.R.S., which specifies that the Court shall order reasonable fees to be paid by the relinquishing parent(s).

d. The State, through the OCR, shall bear the costs for GAL services provided to a minor under Title 15 (probate, guardianship and conservatorship) and other civil cases only when the parti(es) ordered to be responsible for the costs or the minor’s estate is deemed to be indigent.

2. When indigency is required for court-appointed representation at state expense, the responsible party(ies) must complete, or have completed on their behalf, application form JDF208 (Application for Court-Appointed Counsel or GAL) signed under oath, before an appointment may be considered. An indigent person is one whose financial circumstances fall within the fiscal standards set forth by the Supreme Court through Chief Justice Directive (See Attachment A). A court shall not order representation to be at state expense absent the completion of form JDF208, a finding of indigency and an order of the court. If one party is indigent, the State, through the OCR, will pay half of the state-set hourly rate.

B. Guidelines for Payment by the OCR

1. Claims for payment of appointee fees and expenses shall be submitted by the appointee directly to the OCR, not the appointing court, in accordance with the OCR’s policies and procedures.

2. Maximum total fees per appointment for OCR appointments and procedures for approval of excess fees shall be as set forth by the OCR.

3. Attorneys shall maintain records of all work performed relating to court appointments and make all such records available to the OCR and/or court for inspection, audit and evaluation in such form and manner as the OCR or court may require, subject to the attorney/client privilege.

V. Duties of Attorneys Appointed as GALs, Attorney Child and Family Investigators or Child’s Representatives

A. Training

1. Attorneys appointed as GALs, attorney child and family investigators or Child’s Representatives shall possess the knowledge, expertise and training necessary to perform the court appointment.

2. In addition, GALs, attorney child and family investigators and Child’s Representatives shall obtain 10 hours of the required continuing legal education courses or any other modified training requirements established by subsequent Chief Justice Directive practice standards, rule or statute, which are relevant to the appointment and that enhance the attorney’s knowledge of the issues in best interest representation. These requirements should be met prior to attorney’s first appointment and per legal education reporting period. The attorney shall provide the OCR with proof of compliance with this requirement with his/her application to provide attorney services or contract renewal for the OCR.

B. All attorneys appointed as a GAL or Child’s Representative shall be subject to all of the rules and standards of the legal profession, including the additional responsibilities set forth by Colorado Rule of Professional Conduct 1.14.

C. The attorney appointed shall diligently take steps that s/he deems necessary to protect the interest of the person whom s/he was appointed to represent, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the child(ren), the appointee may request that the court expand the terms of the appointment and scope of the duties.

D. A GAL in a dependency and neglect case shall specifically:

1. Attend all court hearings and provide accurate and current information directly to the court. (In exceptional circumstances another qualified attorney who has sufficient knowledge of the issues and status of the case may substitute for some hearings, with permission of the court.).

2. At the court’s direction and in compliance with Section 19-3-606(1), 6 C.R.S. (2003), file written or oral report(s) with the court and all other parties.

3. Take actions within the scope of his or her statutory authority and ethical obligations necessary to represent the best interests of the child.

Commentary: The GAL has the right to and should actively participate and be included in all aspects of litigation including but not limited to discovery, motions practice, settlement negotiations, court appearances, jury selection, presentation of evidence and appeals, except as limited by applicable law.

4. Conduct an independent investigation in a timely manner which shall include at a minimum:

a. Personally interviewing the child (if age-appropriate) and meeting with and observing the child in his or her placement as soon as is reasonable, but, in no event, later than 30 days following the GAL’s appointment;

b. Personally meeting with and observe the child(ren)’s interaction with the parents, proposed custodians or foster parents including kinship care providers;

Commentary: The GAL shall meet with the foster parent, kinship care provider or other custodian who is providing ongoing care for the child and observe the child in that home. This requirement neither mandates nor is fulfilled by a GAL’s meeting with the care provider(s) and observing the child(ren) in a temporary intake placement service, respite care or juvenile detention holding facility, unless that is the only opportunity to observe the child(ren).

c. Reviewing court files and relevant records, reports and documents;

d. Interviewing, with the consent of counsel, respondent parents;

e. Interviewing other people involved in the child’s life, including: foster parents; caseworkers; CASA volunteers; relatives; and school personnel, therapists and any other persons or professionals necessary to assess and serve the child’s best interests.

f. Confirm that the county department’s investigation has included a search for any prospective kinship, placement and/or adoption or potential tribal affiliation, or personally conduct such investigation, in case attempts to reunify fail. This part of the investigation should be conducted in the initial stages of the case.

g. When appropriate, visiting the home from which the child was removed.

Commentary on items 4a-g: The initial investigation sets the groundwork for the entire Dependency and Neglect case, and an effective initial investigation is critical to serving a child’s best interest and advancing permanency for a child. An effective initial investigation allows the GAL to make recommendations early on in a case that will: implement services that will advance the goals of the case and the best interests of the child(ren) with the least delay possible; reduce the risk of harm that involvement in the Dependency and Neglect system may present to the well being of the child(ren); reduce the risk of disruption in the child’s placement and potential harm from the child from such disruption; and preserve relationships significant to the child(ren), such as sibling relationships. Hence, it is expected that the initial duties described in this subsection shall be completed within 45 days of the GAL’s appointment, with the exception of the in placement interview/observation, which shall occur within 30 days. Duties (e) and(f) may be performed, under the supervision of the appointee, by a qualified person other than the appointee.

5. Continue to perform an ongoing investigation as is necessary to represent the best interest of the child for the duration of the case unless relieved of such duty by the court. Said investigation shall include, but shall not be limited to:

a. If the child’s placement is changed, the GAL shall personally meet with and observe the child in each new home or placement of the child, as soon as is practicable after the child’s entry into the placement.

Commentary: Continuing contact and ongoing investigation constitute important components of the GAL’s role. Additionally, because each disruption in the child(ren)’s placement presents new risks of harm and is potentially detrimental to the child(ren)’s emotional and psychological well being, it is critical that the GAL meet with and observe the child(ren) in each new placement to assess the appropriateness, risks and potential permanency of that placement, as part of the GAL’s ongoing investigation. This in-placement meeting/observation shall ideally occur no later than 30 days after the child’s entry into the new placement. When circumstances make it impracticable for a GAL to visit a child within 30 days of a child’s entry into a new placement, the GAL may send a properly trained representative to visit the child in the placement within thirty days of the placement, the GAL to follow up with a visit within a reasonable time thereafter.

b. Maintaining contact and ongoing communication with the child, foster parents, caseworker, CASA and any other parties, persons or professionals necessary to ensure that the child’s best interest are continually met;

c. Other applicable duties listed above in (V)(C)(3).

6. In cases in which the parents or child are living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person or child are waived. However, to the extent possible, the appointee shall endeavor to see the child in his or her extended placement and the OCR will pay reasonable costs associated with meeting these obligations.

7. All GALs paid by the state shall submit a standard affidavit of compliance to the OCR by May 30 of each year for appointments made in the previous contract year. For any cases in which the attorney has not complied with the above requirements, a standard exception form shall be attached to the affidavit. The standard affidavit of compliance and exception form shall be developed by the OCR and made available to all GALs and child and family investigators. The current form is shown in Attachment B.

E. An individual appointed as an attorney child and family investigator pursuant to Section 14-10-116.5, C.R.S. (2005), is an investigative arm of the court and shall follow the specific terms of the order of appointment, which will include the filing of a written report with the court, but may not include all of the other duties described in paragraph V.B. The attorney child and family investigator is subject to Chief Justice Directive 04-08, child and family investigator Standards, as well as other existing or subsequent Chief Justice Directives or standards.

F. An attorney appointed as a GAL or Child’s Representative in all other proceedings, including juvenile delinquency, parental responsibility, paternity, relinquishment, probate, mental health and truancy cases, shall perform all duties as directed by the court, as set forth by statute and as required by the Rules of Professional Conduct which may include some or all of the duties described in paragraph V.B.

VI. Duties of Judges and Magistrates

A. Judges and magistrates shall ensure that GALs, attorney child and family investigators and Child’s Representatives involved with cases under their jurisdiction are representing the best interests of children/minors.

B. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive and promptly notify the OCR of failures of GALs, Attorney child and family investigators and Child’s Representatives to comply with this Directive and other Chief Justice Directives in existence or subsequently adopted, including CJD 04-08, Child and Family Investigator Standards.(See complaint and notice procedure set forth in footnote 1 under VII.B.);

Commentary: Children represented by counsel in dependency and neglect and other proceedings in which best interests representation has been deemed necessary are possibly the most vulnerable clients represented in the legal profession. Moreover, children tend not to appear in court regularly and may not otherwise be able to express concerns and problems that they are experiencing with their legal representation. For these reasons, judges should take an active role in the monitoring of the attorneys who represent the best interests of children. Often the judge is the only individual in the position to become aware of less than adequate representation or non-compliance with this directive. Judges should consider such practices as inquiring at each court date as to the last contact that the GAL has had with the subject child, as well as asking any other questions a judge believes is necessary and appropriate to ensure that the child is receiving quality representation.

2. Provide guidance and clarify the expectations of the court concerning GALs, attorney child and family investigators or Child’s Representatives upon their appointment, throughout the proceedings and through other appropriate mechanisms;

3. Hold periodic meetings with all practicing GALs, attorney child and family investigators or Child’s Representatives as the court deems necessary to ensure adequate representation of children or minor wards; and

4. Hold GALs and Child’s Representatives to the same standards and expectations imposed on every attorney by the Colorado Rules of Professional Conduct who is licensed to practice law in Colorado and report any violations of the rules of professional conduct. Any report should also include notice to the OCR of such report or concern so that the OCR may use this information to protect existing or other children from inadequate representation.

C. Implement procedures and practices necessary to enable attorneys’ compliance with this directive.

Commentary: Examples of procedures and practices enabling attorneys’ compliance with this directive include entering orders authorizing the GAL access to all relevant information and scheduling hearings on dates on which a GAL is available.

VII. Procedures for Complaints Against Attorneys Providing GAL, Attorney Child and Family Investigator and Child’s Representative Representation through Contracts with the Office of the Child’s Representative.

A. For all court-appointed GALs, attorney child and family investigators and Child’s Representatives, complaints concerning alleged violations of the Colorado Rules of Professional Conduct shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel and reported, if possible, to the OCR so that OCR may be able to consider this information when deciding whether to continue to contract with the attorney, either at the time of the complaint or in the future.

B. All complaints regarding the performance of any state-paid GAL, attorney child and family investigator or Child’s Representative who contracts with the OCR shall be submitted to the OCR in writing, unless the complainant is a judicial officer or court staff.1 The OCR shall investigate the matter and take the action that it believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to: placing the subject attorney on probationary status with regard to his or her contract with the OCR; suspending or terminating the attorney’s contract with the OCR; terminate the attorney’s appointment on an active case2; and/or taking remedial action to improve the quality of the attorney’s representation of children. At the conclusion of the investigation, the OCR shall issue a written report of its action to the subject attorney, the complainant and other parties determined by the OCR to be in need of the complaint information, and the OCR may redact the written report to protect the confidentiality of persons when the OCR deems such redaction advisable. This paragraph does not preclude OCR’s authority to terminate a contract at will.

C. The OCR is required to report any violations of the Colorado Rules of Professional Conduct that it becomes aware of during its investigation of a complaint to the Colorado Supreme Court Office of Attorney Regulation Counsel.

VIII. Sanctions

A. All contracts with the OCR for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in OCR terminating the contract, removing the attorney from the OCR appointment list, and terminating the appointment.

B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply will result in timely notification to the OCR and may result as set forth above in VIII A.

Done at Denver, Colorado this 30th day of November, 2005

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court

_______

1. If an issue arises concerning an attorney’s ability to competently or adequately represent a child in any particular case, the court shall immediately contact the OCR. The OCR must respond forthwith, giving immediate consideration and resolution regarding the complaint, which may include termination of contract, removal from the case at issue, and/or removal from the OCR approved list. In addressing the complaint, the OCR will give serious consideration to the judicial officer’s recommendations as to how the termination of an appointment or any other action taken by the OCR may impact the best interest of the child in the course of a particular case. This complaint process in no way interferes with the court’s inherent powers to impose sanctions, exercise its powers of contempt, and/or report any violations of the Rules of Professional Conduct to the Supreme Court Attorney Regulation Office.

2. The OCR will remove an attorney from an open case only under extenuating circumstances. With input from the court and only if warranted under the most exceptional circumstances, will the OCR consider removing an attorney from an existing and ongoing appointment. The OCR fully understands and appreciates the serious consequences that may result from removing an attorney from an existing case. It can disrupt the continuity of the case, interrupt and delay the court process, extend the length of the case and ultimately may not be in the best interests of the child. As such, only after serious consideration will the OCR remove an attorney from a case.

For more information about CJD 04-06 and corresponding Attachments, contact Sarah Ehrlich, Office of the Child’s Representative, 303-860-1517 or SarahEhrlich@coloradochildrep.org.

___________________

Chief Justice Directive 04-08
Supreme Court of Colorado, Office of the Chief Justice
Directive Concerning Court Appointments of
Child and Family Investigators Pursuant to CRS § 14-10-116
Amended November 2005

I. INTRODUCTION.

The following policy is adopted to assist the administration of justice through the appointment and training of child and family investigators pursuant to section 14-10-116, C.R.S (2003). It is intended to apply to all child and family investigators appointed pursuant to section 14-10-116, including those child and family investigators paid with state funds pursuant to either CJD 04-05 or CJD 04-06.

Child and Family Investigators (formerly "Special Advocates") were created by statute in 1997 and authorized to investigate, report, and make independent and informed recommendations to the court, following a court appointment by order which clearly sets forth the subject matter and scope of the child and family investigator’s duties. A child and family investigator can be any individual whom the court believes able to fill this role. In much of the state, attorneys and mental health professionals are appointed exclusively. In rural areas CASAs and trained members of the community such as nurses or educators may round out the pool of potential child and family investigators.

The Commission on Families in the Colorado Courts recommended in its August 2002 Final Report that standards be drafted to clarify the role and the accountability of child and family investigators. The Supreme Court’s Standing Committee on Family Issues through its Other Professionals Subcommittee solicited comments from members of the public, judges, attorneys, and child and family investigators from around the state, and learned that a lack of clear standards has created problems in certain key areas. These are: role clarification and avoidance of multiple roles, communication issues, payment issues, establishment of clear procedures for complaints, and consistency in court procedures.

The standards, duties of the courts, and the model child and family investigator appointment order set forth in this CJD have been drafted with the knowledge that the role of child and family investigator will be filled by people from different professions and backgrounds. These standards are intended to provide guidance to child and family investigators and to provide a structure for regulating conduct in order to better serve the families of Colorado. The standards do not, however, exhaust the ethical and professional considerations that should inform a child and family investigator in his or her duties. Violation of a standard should not in and of itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached or that a professional ethical violation has occurred. They should be interpreted with reference to the purpose of a child and family investigator as defined by the statute. The comments set forth with each standard explain and illustrate the meaning and purpose of the standard, and are intended as a guide to that interpretation.

II. STATUTORY AUTHORITY AND EXISTING CHIEF JUSTICE DIRECTIVES

A. Section 14-10-116, C.R.S provides for the appointment of child and family investigators in domestic relations cases. The child and family investigator may, but need not, be an attorney. The role of the child and family investigator, as defined by statute, is to investigate, report, and make recommendations to the court on issues that affect the best interests of the minor and dependent children involved in a domestic relations case. The subject matter and scope of the child and family investigator’s duties shall be clearly set forth in the court’s appointment order.

B. CJD 04-05 and CJD 04-06 were effective May 1, 2004 and CJD 97-02 was repealed effective May 1, 2004. CJD 04-05 addresses appointment and payment procedures for non-attorney child and family investigators appointed pursuant to Section 14-10-116, C.R.S. These non-attorney child and family investigators are reimbursed by the State Court Administrator’s Office ("SCAO") when parties have been found indigent. CJD 04-06 addresses court appointments of attorney child and family investigators through the Office of the Child’s Representative ("OCR") when parties have been found indigent.

C. This CJD sets forth a comprehensive set of standards for and responsibilities of appointing courts for all child and family investigators, attorney and non-attorney; whether state paid or privately paid, if appointed pursuant to section 14-10-116, C.R.S.

D. Pursuant to section 14-10-116, C.R.S., child and family investigators and child’s legal representative are the only possible appointments in dissolution cases and those involving allocation of parental responsibility or parenting time. Although guardians ad litem remain in juvenile and probate cases, the statute removed guardians ad litem from domestic relations cases.

III. CHILD AND FAMILY INVESTIGATOR STANDARDS

A. GENERAL PRINCIPLES

1. THE CHILD AND FAMILY INVESTIGATOR SHALL ACT PROFESSIONALLY

2. THE CHILD AND FAMILY INVESTIGATOR SHALL MAINTAIN OBJECTIVITY

B. ROLE OF THE CHILD AND FAMILY INVESTIGATOR

3. THE CHILD AND FAMILY INVESTIGATOR SERVES AS AN INVESTIGATIVE ARM OF THE COURT

4. THE CHILD AND FAMILY INVESTIGATOR SHALL NOT SERVE DUAL ROLES

5. THE CHILD AND FAMILY INVESTIGATOR MAY MOVE TO THE ROLE OF PARENTING COORDINATOR

C. DUTIES OF THE CHILD AND FAMILY INVESTIGATOR

6. THE CHILD AND FAMILY INVESTIGATOR SHALL MAINTAIN COMPETENCE THROUGH TRAINING

7. THE CHILD AND FAMILY INVESTIGATOR SHALL ACKNOWLEDGE WHEN AN ISSUE IS BEYOND HIS OR HER COMPETENCE

8. THE CHILD AND FAMILY INVESTIGATOR SHALL COLLECT DATA AND CONDUCT AN INVESTIGATION SUFFICIENT TO ALLOW THE CHILD AND FAMILY INVESTIGATOR TO PROVIDE COMPETENT OPINIONS

9. THE CHILD AND FAMILY INVESTIGATOR SHALL HAVE AGE-APPROPRIATE COMMUNICATION WITH THE CHILD/REN INVOLVED

10. THE CHILD AND FAMILY INVESTIGATOR SHALL REPORT CHILD ABUSE TO THE PROPER AGENCY AND THE COURT

11. THE CHILD AND FAMILY INVESTIGATOR SHALL PREPARE A CLEAR AND TIMELY REPORT

12. THE CHILD AND FAMILY INVESTIGATOR SHALL PROVIDE COPIES OF HIS OR HER FILES UPON REQUEST

13. THE CHILD AND FAMILY INVESTIGATOR SHALL MAINTAIN CONFIDENTIALITY

14. THE CHILD AND FAMILY INVESTIGATOR SHALL REQUEST TERMINATION OF THE APPOINTMENT WHEN PERMANENT OR POST-DECREE ORDERS ARE ENTERED

D. COMMUNICATIONS

14. THE CHILD AND FAMILY INVESTIGATOR SHALL DEVELOP WRITTEN POLICIES FOR THE PARTIES

16. THE CHILD AND FAMILY INVESTIGATOR SHALL DEVELOP WRITTEN POLICIES FOR COUNSEL

17. THE CHILD AND FAMILY INVESTIGATOR SHALL REVIEW COURT ORDERS

19. THE CHILD AND FAMILY INVESTIGATOR SHALL HAVE NO PRIVATE OR EX PARTE COMMUNICATION WITH THE COURT

A. GENERAL PRINCIPLES

STANDARD 1

THE CHILD AND FAMILY INVESTIGATOR
SHALL ACT PROFESSIONALLY

Child and family investigators shall provide their service in a manner consistent with the highest standards of their respective professions. They shall be accurate and honest in their work and in their communications with the parties and the court. While the best interests of the child/ren are paramount, child and family investigators shall respect the rights, the dignity, and the welfare of the parties and the children with whom they work.

COMMENT

The child and family investigator’s primary responsibility is to assure that the "best interests" of the child/ren s/he has been appointed to serve, as defined in section 14-10-124, C.R.S.(1998) are thoroughly explored, understood, and accurately conveyed to the court. In meeting this responsibility the child and family investigator should understand that s/he is working with families at a difficult and stressful time. S/he should attempt to establish a positive and constructive professional working relationship with family members.

The child and family investigator should be mindful of the diverse nature of families and respect cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status and consider these factors when working with a family. S/he should be sensitive to the separate interests, rights, wishes and concerns of the parents and other parties in a case. S/he must remember that s/he is in—and is viewed as being in—a position of influence over a family’s future.

During the course of his or her work, a child and family investigator will be in communication with a variety of individuals and agencies. The means of communication may involve direct interviews, phone contact, faxes, e-mail, or written correspondence. There is no one right way to communicate, but a child and family investigator should be aware of his or her position as an investigative arm of the court.

STANDARD 2

THE CHILD AND FAMILY INVESTIGATOR
SHALL MAINTAIN OBJECTIVITY

The child and family investigator shall strive to maintain objectivity and independence. If the child and family investigator becomes aware of an insurmountable bias or prejudice in dealing with a case s/he shall request the court terminate the appointment with proper notice to the parties.

COMMENT

A child and family investigator’s opinions are to be based on his or her independent investigation and review of a case. S/he should guard against being unduly influenced by the conclusions of other professionals who are working or have worked on the case.

There are times when objectivity is difficult to maintain and the child and family investigator, through no fault of his or her own, simply cannot set aside a bias or feelings that occasionally develop when working with challenging parties or high conflict families. When this occurs the child and family investigator should request removal from the case.

B. ROLE OF THE CHILD AND FAMILY INVESTIGATOR

STANDARD 3

THE CHILD AND FAMILY INVESTIGATOR
SERVES AS AN INVESTIGATIVE
ARM OF THE COURT

A child and family investigator is appointed to serve as an investigative arm of the court. He or she is to gather information, formulate recommendations, and report to the court concerning a child’s best interests with regard to whatever issues were set forth in the court’s order of appointment.

COMMENT

The focus on investigation is not intended to prescribe a regimented set of investigative steps that a child and family investigator must follow in his or her work, but rather to emphasize that the primary role is to provide information and make recommendations that will allow the parties, counsel and the court to craft orders that best serve the child/ren. The issues in, or concerns about, different families will be different. The type, scope, or extent of investigation needed in different families will be different. These standards are not intended to limit the flexibility available to the parties and the court when deciding that an investigation by a child and family investigator would be helpful and when preparing the order of appointment.

This flexibility means that within the scope of the investigative role, a child and family investigator may use the information s/he has gathered in ways that facilitate or encourage settlements if appropriate. A child and family investigator might, for example, provide information to the parties about effective parenting or co-parenting. S/he might also assist a family by providing information to the parents about their child/ren’s wishes and needs or about better communication techniques. In some cases the child and family investigator can help de-escalate conflict and help the parties refocus on the needs of their child/ren.

A child and family investigator may participate in conferences with the parties and/or the court. When doing so the child and family investigator should act in ways consistent with the court’s appointment in the case.

STANDARD 4

THE CHILD AND FAMILY INVESTIGATOR
SHALL NOT SERVE DUAL ROLES

The child and family investigator shall not

A) serve as a formal mediator in the case;

B) provide psychotherapy to any of the parties or children in the case;

C) provide legal advice to any party or otherwise act as an attorney in the case;

D) later accept an appointment as a child’s legal representative ("CLR") in the same case or in the same family if s/he is an attorney;

E) accept the appointment if s/he has had a prior personal relationship, or a prior professional role with the family. This shall not include a prior appointment as child and family investigator;

F) serve as an arbitrator or special master in the case.

COMMENT

A) Mediation. Because child and family investigators investigate and make reports and recommendations they cannot, by definition, promise confidentiality to the parties involved. Mediation by contrast is confidential. Section 13-22-311, C.R.S. The main goal of mediation is dispute resolution. A child and family investigator may on occasion facilitate conflict resolution or help negotiate a specific issue during the course of his or her appointment, but this informal assistance should not be deemed mediation and is not confidential. The child and family investigator’s primary duty is advising the court on the child/ren’s best interest with regard to some issue, not resolving it for the parties.

B) Psychotherapy. As with mediators, therapists have confidentiality obligations to their clients that are at odds with a child and family investigator’s duties. The roles, purposes, goals, responsibilities, approaches, and professional and ethical requirements of a treating therapist are in conflict with those of a child and family investigator.

C) Legal Action. Because a child and family investigator is charged with investigating, s/he will often testify in the case. Colorado Rule of Professional Conduct 3.7(a) precludes a licensed attorney from acting as a lawyer in any case in which s/he is likely to be a necessary witness.

D) Child’s Legal Representative. The role requirements of the child and family investigator and the CLR are in conflict with each other. Section 14-10-116 (1), C.R.S. specifically prohibits this dual role.

E) Prior Contacts. A child and family investigator should avoid multiple relationships which could reasonably be expected to impair objectivity, competence or effectiveness. Prior therapeutic relationships, for example, will be compromised and pre-existing alliances and loyalties that a therapist or attorney or other professional or friend have established will impair objectivity.

F) Arbitrator or Special Master. A child and family investigator should not serve in any role that would require her/him to arbitrate disputes between parties since this would require a child and family investigator to take positions that would compromise her/his ability to serve as the information gathering, investigative arm of the court.

STANDARD 5

THE CHILD AND FAMILY INVESTIGATOR
MAY MOVE TO THE ROLE OF
PARENTING COORDINATOR

In some cases a child and family investigator may agree to move to the separate role of parenting coordinator after all of his or her duties as child and family investigator are completed and the appointment has been terminated by the court. This move should only occur with the informed consent of both of the parties and the child and family investigator. The child and family investigator who accepts an appointment as a parenting coordinator shall not be appointed as a child and family investigator in the same case in the future.

COMMENT

At the conclusion of the child and family investigator’s investigation for the court, and the entry of orders related to the parental responsibility issues before the court, the family may have ongoing needs for assistance from a third party, or may in the future require assistance related to parenting disputes. Some parties may find that the child and family investigator’s prior investigation and familiarity with the family’s dynamics would assist them in resolving outstanding or new issues. If the parties and the child and family investigator agree, it may be appropriate to appoint the child and family investigator to the role of parenting coordinator by a new appointment order clearly outlining the new duties of the parenting coordinator.

Note: Currently in Colorado there is no statute that defines the role of parenting coordinator. Nonetheless, parenting coordinators are being used with some frequency in Colorado to assist high conflict families which have ongoing disputes. Some jurisdictions appoint "parenting coordinators" and some appoint "med-arbiters" to fill this role. This standard thus reflects the reality of current practice in Colorado. These child and family investigator standards are not meant to apply to those serving in a parenting coordinator type role.

C. DUTIES OF THE CHILD AND FAMILY INVESTIGATOR

STANDARD 6

THE CHILD AND FAMILY INVESTIGATOR
SHALL MAINTAIN COMPETENCE
THROUGH TRAINING

The child and family investigator shall accept appointments only after attaining a level of competence that includes an understanding of both the legal and psychological/social issues that are typically present in dissolution or parenting cases, and shall maintain and regularly update his or her training in relevant areas.

New child and family investigators shall complete 40 hours of training in relevant areas prior to accepting appointments.

Attorneys and mental health professionals and other members of the community who are working as child and family investigators, shall complete no less than 15 hours of continuing education in relevant areas every three years.

COMMENT

A child and family investigator achieves competence through some combination of education, specialized training, supervision, consultation, and professional experience. S/he has a responsibility to develop and maintain a working familiarity with the applicable law and the professional standards that govern his or her duties and participation in legal proceedings. The "relevant areas" in which a child and family investigator should demonstrate experience, education or skills include the following:

• The effects of divorce, single parenting, and remarriage in children, adults, and families;

• Dynamics of high conflict divorce;

• Child development, including cognitive, personality, emotional and psychological development;

• Child and adult psychopathology;

• Family dynamics and dysfunction, domestic violence and substance abuse;

• Child abuse;

• Parenting capacity;

• Diversity issues;

• Available services for the child/ren and parties including medical, mental health, educational, and special needs;

• The legal standards applicable in each case in which the child and family investigator is appointed;

• Interview techniques for interviewing children and others.

A child and family investigator should maintain current, accurate records of training and on-going education and provide those records upon request.

STANDARD 7

THE CHILD AND FAMILY INVESTIGATOR
SHALL ACKNOWLEDGE WHEN AN ISSUE
IS BEYOND HIS OR HER COMPETENCE.

A child and family investigator has a duty to recognize and inform the parties and the court when an issue falls outside of his or her training or expertise.

COMMENT

When a child and family investigator recognizes that an issue falls outside of his or her area of expertise, the parties should be informed and a referral should be made to a professional in the appropriate discipline. To accomplish this, the child and family investigator should ask the parties to cooperate with the referral or, with proper notice, inform the court and request that the order of appointment be amended.

STANDARD 8

THE CHILD AND FAMILY INVESTIGATOR
SHALL COLLECT DATA AND CONDUCT AN
INVESTIGATION SUFFICIENT TO ALLOW
THE CHILD AND FAMILY INVESTIGATOR TO
PROVIDE COMPETENT OPINIONS

A child and family investigator shall complete whatever investigation is necessary in light of the scope of the court order, the legal standard being addressed, and the complexity of the family and the family issues being evaluated.

COMMENT

A child and family investigator must be careful to assure both fairness and the appearance of fairness, allowing the parties relatively equal and comparable opportunities to present their perspectives. Depending on the case, the child and family investigator may need information from collateral sources such as teachers or therapists; may need to review school, medical, or other records; may need to check criminal histories or obtain drug testing; or may require other case-specific information or evaluations. The flexibility of the role allows the court to tailor its order of appointment, and the child and family investigator to tailor his or her investigation, to the needs of the family involved.

A child and family investigator should use methods of data collection that are consistent with accepted professional standards. S/he should indicate any limits to the data or information and how that may impact his or her ultimate opinions. S/he should document the investigation to ensure accountability. A child and family investigator should recognize that his or her file may be discoverable by parties and counsel in the case, and therefore should maintain clearly documented records.

A child and family investigator may use qualified employees, co-workers, interns or trainees. The person named on the court order of appointment, however, assumes responsibility for the services and provides any necessary supervision or consultation for other professionals providing services.

STANDARD 9

THE CHILD AND FAMILY INVESTIGATOR SHALL
HAVE AGE-APPROPRIATE COMMUNICATION
WITH THE CHILDREN INVOLVED

The child and family investigator shall inform the child/ren of the purpose of the child and family investigator’s involvement and the limits of confidentiality. S/he shall obtain information from the child/ren, including the wishes of the child/ren, through appropriate interview techniques.

COMMENT

The nature of the legal proceeding or issue should be explained to the child/ren in a developmentally appropriate manner. The child and family investigator should ask non-suggestive questions. S/he should be aware that a child’s stated views may vary over time or may be the result of fear, intimidation, or manipulation. While the child and family investigator must consider the wishes of the child/ren, s/he need not adopt them unless they serve the child/ren’s best interest.

STANDARD 10

THE CHILD AND FAMILY INVESTIGATOR
SHALL REPORT CHILD ABUSE TO THE
PROPER AGENCY AND THE COURT

In cases in which the child and family investigator suspects or knows that the child/ren are being neglected or abused, the child and family investigator shall take the steps required to ensure that law enforcement and/or the department of social services is informed, and shall take whatever additional steps are believed necessary to protect the child/ren.

COMMENT

In cases in which the child and family investigator finds that the child/ren are not being optimally cared for, or finds that the parents’ conflict or interactions are harmful but not abusive or negligent, the child and family investigator should develop plans to address the problem and should include them in any report or recommendation to the court.

STANDARD 11

THE CHILD AND FAMILY INVESTIGATOR
SHALL PREPARE A CLEAR AND TIMELY REPORT

The child and family investigator’s conclusions and recommendations shall be presented in a timely manner to the parties and the court in a written report that is clear and non-technical.

COMMENT

The child and family investigator should write his or her report remembering that the parties, along with the court, will be the readers. The report should include information about the investigation and data collection process used, and should address the legal standard that applies to the case. It should set forth the child/ren’s wishes even if those wishes are not ultimately recommended. It should not include opinions and recommendations beyond the scope of the court’s original order of appointment without further authorization.

STANDARD 12

THE CHILD AND FAMILY INVESTIGATOR
SHALL PROVIDE COPIES OF HIS OR HER FILE

The child and family investigator shall, if requested, make available to counsel or a party not represented by counsel in the case, his or her file of underlying data or reports.

COMMENT

A child and family investigator has an obligation to document and be prepared to make available all data that form the basis for his or her opinions and recommendations. The data to be disclosed includes all underlying data in the child and family investigator’s file including the names and addresses of all persons with whom the child and family investigator has consulted, except that, if a child and family investigator believes that the release of any particular information or test data would endanger any person’s welfare s/he should inform counsel and the court of his or her concerns and await further direction from the court before releasing the information in question.

STANDARD 13

THE CHILD AND FAMILY INVESTIGATOR
SHALL MAINTAIN CONFIDENTIALITY

The child and family investigator shall maintain the confidentiality of his or her file and report, and shall disclose either only to the appointing court and the parties and their counsel.

COMMENT

The child and family investigator report or underlying investigation materials shall not be disclosed in any proceeding other than the proceeding before the appointing court absent a court determination that the need for the information requested outweighs the need for privacy. A child and family investigator’s report, and by implication a child and family investigator’s underlying case file, "shall otherwise be considered confidential and shall be sealed and shall not be open to inspection, except by consent of the court." Section 14-10-126(2), C.R.S. Because a child and family investigator’s report and file are court documents under seal, a child and family investigator has no authority to produce these sealed court documents pursuant to a subpoena duces tecum nor to disclose their contents absent consent and an order from the court.

STANDARD 14

THE CHILD AND FAMILY INVESTIGATOR
SHALL REQUEST TERMINATION OF THE
APPOINTMENT WHEN PERMANENT ORDERS
OR THE POST-DECREE ADJUDICATION
IS ENTERED

Although it is the court’s responsibility to terminate the appointment upon the entry of permanent orders or post-decree adjudication, if the court fails to do so the child and family investigator shall request that the appointment be terminated.

COMMENT

Once permanent orders enter, a child and family investigator’s appointment pursuant to section 14-10-116, C.R.S. terminates. It is an abuse of the court’s discretion to continue the child and family investigator appointment beyond permanent orders, or adjudication of post-decree parental responsibility issues. The role of the child and family investigator is to determine and recommend alternatives in the best interests of the child. The parties’ inability to communicate is not a sufficient ground to continue the appointment of the child and family investigator to act as a mediator or facilitator for the parties. See In re Marriage of Finer, 920 P.2d 325 (Colo. App. 1996). Once permanent orders, or orders concerning post-decree parental responsibility issues enter, the court has nothing more to do unless and until some issue is brought back before it by proper motion. If the court has nothing more to resolve in the case, then by definition a child and family investigator has completed his or her work, since a child and family investigator’s role is to investigate and report to the court for the purpose of assisting it in making its orders.

Nor can the court in its order delegate to a child and family investigator the job of crafting or fine-tuning a parenting plan or of resolving other parenting issues. The court might consider and adopt a child and family investigator’s recommendations, but the actual rulings must come from the court. It is an abuse of discretion for the court to transfer its ultimate decision-making power and authority to a child and family investigator. In re the Marriage of McNamara, 962 P.2d 330 (Colo. App. 1998).

Finally, once orders enter "there is no reason why the child and parents should suffer the expense and continued invasion of privacy caused by an indefinite appointment." In the Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994) (concerning a GAL in a paternity case).

D. COMMUNICATIONS

STANDARD 15

THE CHILD AND FAMILY INVESTIGATOR SHALL DEVELOP
WRITTEN POLICIES FOR THE PARTIES

The child and family investigator shall develop written information about his or her policies and procedures. The information shall include the nature of the services provided, the child and family investigator’s qualifications, where complaints should be directed, fees and billing procedures, how communication will be handled, how sensitive information will be handled, and the child and family investigator’s reporting obligations.

COMMENT

When first appointed, a child and family investigator should provide the parties with written information that clarifies, along with the court’s appointment order, the nature and scope of the services to be provided and the limits of confidentiality in court-appointed work. The initial information should describe the child and family investigator’s policies, procedures, qualifications, and reporting obligations, as well as how a party can contact the professional’s applicable regulatory or disciplinary agency. If no applicable regulatory body for a particular child and family investigator exists, then information should be included about how to contact the court should a concern or complaint about the child and family investigator arise.

It is also the responsibility of a child and family investigator to provide specific information to the parties regarding fees, billing policies, and procedures used if there is non-payment of fees. A child and family investigator’s billing statements should list all services performed and detail the time spent and the charges incurred.

STANDARD 16

THE CHILD AND FAMILY INVESTIGATOR SHALL DEVELOP
WRITTEN POLICIES FOR COUNSEL

The child and family investigator shall develop written information about how communications and sensitive information from counsel or parties acting as their own counsel will be handled.

COMMENT

There are many reasons a child and family investigator, when first appointed, might find it helpful to consult with counsel. They include clarifying the scope of the court’s appointment order, discussing timing issues, or raising problems or concerns which develop during the course of a child and family investigator’s work.

There should be no non-disclosed conversations with one party’s counsel. A child and family investigator should remain careful about bias and the appearance of bias in the eyes of parties engaged in high conflict when those parties learn of one-sided communications. If, however, the child and family investigator, the parties, and counsel all agree to some different procedure concerning communication between the child and family investigator and counsel, they should reduce the agreement to writing before the child and family investigator begins work on the case.

STANDARD 17

THE CHILD AND FAMILY INVESTIGATOR
SHALL REVIEW COURT ORDERS

Upon appointment, the child and family investigator shall review the court’s order of appointment and ask for clarification or modification of the order when necessary.

COMMENT

A child and family investigator must ensure that there is a properly executed court order of appointment prior to providing services.

If there is a conflict between the requirements of the order and the child and family investigator’s professional ethical constraints or obligations, then the child and family investigator should take steps to ensure that the conflict is resolved. If, for example, the order requires the child and family investigator to act beyond the scope of his or her competence, or to perform contradictory multiple roles, then the court and counsel should be informed. If the conflict cannot be resolved then the child and family investigator should request removal from the case.

If the order sets fees and retainer amounts that conflict with the child and family investigator’s business practices, s/he should inform the court and request modification of the order or withdrawal from the case. These issues should be addressed immediately upon notice of appointment and before beginning any work on the case.

STANDARD 18

COMMUNICATION WITH THE COURT

The child and family investigator shall have no private or ex parte communications with the court.

COMMENT

An ex parte communication is any communication in which at least one party does not have notice and an opportunity to participate in the communication.

For many reasons a child and family investigator may need to communicate with the court during the course of his or her appointment. The reasons include obtaining information from the court concerning the order of appointment or applicable legal standards, informing the court of the refusal of a party to participate or to pay, or reporting harm or the potential for harm to the child/ren.

The court can be informed of such issues in several ways. Most common would be a short written report with copies to the parties and counsel. If the child and family investigator attends a status conference or court hearing, issues could be raised there. If time were of the essence, a child and family investigator may be able to arrange a conference call to the court. Finally, a child and family investigator might request an opportunity to address the court and then give the parties and counsel reasonable and proper notice of the date and time set.

An attorney child and family investigator shall not communicate with the court by way of motions because Colorado Rule of Professional Responsibility 3.7(a) precludes a licensed attorney from acting as a lawyer in any case in which s/he is likely to be a necessary witness.

IV. COURT’S AUTHORITY, ROLE AND RESPONSIBILITIES RELATED TO CHILD AND FAMILY INVESTIGATORS APPOINTED PURSUANT TO 14-10-116

A. THE COURT SHALL ENSURE COMPLIANCE WITH THE CHILD AND FAMILY INVESTIGATOR STANDARDS

B. THE COURT SHALL MAKE ITS ORDERS CLEAR

C. THE COURT SHALL ALLOCATE THE COSTS FOR CHILD AND FAMILY INVESTIGATORS AND ENFORCE ITS PAYMENT ORDERS

D. THE COURT SHALL TIMELY TERMINATE THE CHILD AND FAMILY INVESTIGATOR’S APPOINTMENT

E. THE COURT SHALL NOT APPOINT CHILD AND FAMILY INVESTIGATORS TO INCONSISTENT DUAL ROLES

F. THE COURT SHALL ENSURE THE CONFIDENTIALITY OF CHILD AND FAMILY INVESTIGATOR REPORTS

A. THE COURT SHALL ENSURE COMPLIANCE WITH THE CHILD AND FAMILY INVESTIGATOR STANDARDS

The Court shall appoint a qualified child and family investigator and shall monitor any complaints concerning that person’s services.

COMMENT

Children deserve to have parental responsibility proceedings conducted in the manner least harmful to them, and most likely to provide judges and magistrates with the facts needed to decide the case. Because the child and family investigator is the investigative arm of the court, it is the court’s responsibility to ensure that the child and family investigator is qualified, and to monitor compliance with this Chief Justice Directive. If issues are raised concerning competency or any other concerns, the court should inquire and provide an opportunity to remedy any unethical or inappropriate conduct.

The court should hold periodic meetings with all practicing child and family investigators to clarify procedures and court expectations concerning child and family investigator investigations.

B. THE COURT SHALL MAKE ITS ORDERS CLEAR

The court shall define the subject matter and scope of the child and family investigator’s investigation in an order in substantial compliance with Attachment A to this Chief Justice Directive.

COMMENT

The child and family investigator is the court’s investigator and serves at the direction and behest of the court. The statute itself requires that the "subject matter and scope of the child and family investigator’s duties shall be clearly set forth in the court’s order of appointment." The Court should provide guidance and a clear statement of its expectations in the order of appointment.

C. THE COURT SHALL ALLOCATE THE COSTS FOR CHILD AND FAMILY INVESTIGATOR SERVICES AND ENFORCE ITS PAYMENT ORDERS

The court shall make clear to all parties, orally and in writing, how the child and family investigator fees will be apportioned and paid. The court shall enforce its orders for payment by all available means. Child and family investigators are entitled to receive adequate and predictable compensation.

COMMENT

Section 14-10-116(3), C.R.S. requires the court to enter an order for costs, fees and disbursements for the child and family investigator appointed by the court. Those costs shall be borne by the parties unless a party is found to be indigent in which case the state shall pay the costs. Refer to CJD 04-05 for non-attorney child and family investigator state paid cases. Refer to CJD 04-06 for attorney child and family investigator state paid cases.

It is the responsibility of the court to enforce its order concerning payment of the child and family investigator through its contempt power. When non-payment or partial payment issues arise, the child and family investigator may notify the court regarding the non-payment issue and ask for guidance. The court, at its discretion, should determine what course of action is appropriate, including continuing court dates, finding parties in contempt, or reallocating the parties’ division of fees. Because the child and family investigator is the investigative arm of the court and is performing valuable duties for the court under the court’s order, the court is responsible for ultimately overseeing and ensuring compliance with its appointment and fee order.

B. THE COURT SHALL TIMELY TERMINATE THE CHILD AND FAMILY INVESTIGATOR’S APPOINTMENT

The Court shall terminate the child and family investigator’s appointment upon entry of permanent orders or post-decree adjudication.

COMMENT

See the Comment under III.C. Standard 14.

E. THE COURT SHALL NOT APPOINT CHILD AND FAMILY INVESTIGATORS TO DUAL ROLES

The Court shall not appoint child and family investigators to serve in dual roles which are inconsistent, and create conflicts.

COMMENT

See the Comment under III.B. Standard 4.

F. THE COURT SHALL ENSURE CONFIDENTIALITY OF CHILD AND FAMILY INVESTIGATOR REPORTS

Because the report of a child and family investigator often contains otherwise private medical, psychological, substance abuse, or educational information, the court shall ensure its confidentiality and maintain it under seal.

COMMENT

Child and family investigators are appointed to gather information for the court’s use in making decisions in the child/ren’s best interest. It is unlikely to be in any child’s best interest to have the private lives, failures, and foibles of his or her family spread across the public record. This is recognized by statute, section 14-10-126(2), C.R.S.. The court is also more likely to get complete and candid information if confidentiality is assured. Finally, this directive aids child and family investigators who can turn to the court for guidance when parties or lawyers outside of the DR case attempt to subpoena the highly personal information contained in their files and reports.

See the Comment under III.C. Standard 13.

Done at Denver, Colorado this 30th day of November, 2005

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court

For more information about CJD 04-06 and corresponding Attachments, contact Sarah Ehrlich, Office of the Child’s Representative, 303-860-1517 or SarahEhrlich@coloradochildrep.org.

________________________________________________________________________

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. ADVISORY OPINION 2005-05
(Finalized and Effective November 25, 2005)

ISSUE PRESENTED

A judge’s spouse plans to seek election to a nonpartisan elected office. The judge recognizes Canon 7’s strictures, but requests guidance from the Board as to whether the Canons reach the spouse’s activities and as to the permissible scope, if any, of the judge’s involvement in the spouse’s campaign. Given that the judge’s spouse has also expressed interest in the possibility of seeking partisan elected state office, the judge requests that the Board address whether that circumstance alters its analysis. Because the judge’s spouse has no immediate intent to seek partisan elected office, we decline to address the second portion of the judge’s question, pursuant to CJD 94-01, which directs the Board to issue ethical advisory opinions only related to whether intended, future conduct comports with the Code of Judicial Conduct.

CONCLUSIONS

The judge’s spouse is not subject to the Code of Judicial Conduct and thus may freely pursue whatever elected office to which the spouse aspires. The judge, however, should refrain from attending all political events, such as campaign kick-offs and cocktail parties, in support of the spouse’s candidacy and must avoid activities, such as displaying yard signs or bumper stickers, that could be perceived as constituting an endorsement of the candidate or using the prestige of the judicial office to benefit the spouse. The judge may, however, allow the judge’s photograph to be used in the spouse’s campaign literature as long as the judge is not depicted as or identified as a judge.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 generally directs a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities. Canon 2B specifies that a judge should not allow family, social, or other relationships to influence the judge’s conduct or judgment. A judge should not lend the prestige of his or her office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence him or her.

Canon 7A addresses a judge’s political conduct in general. Canon 7A(b) provides that a judge shall not make speeches on behalf of or endorse a candidate for public office. Canon 7A(c) states that a judge shall not solicit funds for or make a contribution to a political organization or candidate, attend political partisan gatherings, or purchase tickets for political party dinners or other similar functions. All other political activity, except on behalf of measures to improve the law, legal system, the administration of justice, or the role of the judiciary as an independent branch, or as otherwise expressly permitted when the judge is a candidate for retention, is disallowed.

Canon 7C addresses nonpartisan conduct. It specifies that a judge may attend and participate in nonpartisan gatherings at which legal or social issues are addressed, provided that the judge shall neither discuss cases in which he or she has participated that are not yet final, nor state how the judge would rule on any case or issue that might come before him or her.

DISCUSSION

As a preliminary matter, the Board points out that the Code of Judicial Conduct binds only judges; the spouse or other family member of a judge is not subject to its strictures. Although some jurisdictions’ canons require a judge to urge the judge’s spouse not to participate in political campaigns or to seek elected office, See, e.g., Kentucky Ad. Op. JE-5, the reach of Colorado’s Canons is not that long, and judges in this state need not try to dissuade a spouse or other family members from running for office. Indeed, "[n]othing in the code of judicial conduct in any state prevents members of a judge’s family from running for political office, supporting others’ candidacy for political office, or being involved publicly in other political activities—as long as they are careful not to suggest their activities reflect the judge’s convictions as well." Cynthia Gray, Political Activity by Members of a Judge’s Family, State Justice Institute, American Judicature Society, at 1-2 (May 2001).

While the judge’s spouse is thus free to pursue elected office, the Colorado Code of Judicial Conduct limits the judge’s freedom to assist his or her spouse in the campaign for nonpartisan office. The Code sets high standards for judicial conduct, and it proscribes judges from partaking in activities in which the ordinary citizen may freely indulge. The reach of the Code extends beyond judges’ professional obligations and into their nonjudicial lives. Judges must not only be impartial, but they also must conduct themselves in such a way that the public can perceive and continue to rely upon their impartiality. The broad Canons of the Code set forth general requirements that a judge act with integrity, independence, propriety, and impartiality. The more specific provisions of Canon 7 address permissible conduct in both political and nonpartisan arenas. Canon 7A governs political conduct, and generally prohibits a judge from having any involvement in political matters, whether partisan or nonpartisan. Canon 7A(b) specifies that a judge may not publicly endorse a candidate for public office, while Canon 7A(c) forbids a judge to make a contribution to a political candidate. All other political activity, except that related to improvement of the law, legal system, or administration of justice, is off limits under Canon 7A(d). However, Canon 7C permits a judge to attend and participate in nonpartisan gatherings at which legal or social issues are addressed, provided that the judge shall neither discuss cases in which he or she has participated that are not yet final, nor state how the judge would rule on any case or issue that might come before him or her.

The Board concludes that, under the circumstances presented here, the judge must refrain from attending most events related to the spouse’s campaign for nonpartisan elected office because the judge’s presence at such functions would constitute a public endorsement of a candidate for public office and would lend the prestige of the judge’s office to advance the spouse’s interests. Even though the campaign in question is described as nonpartisan, it is still political and thus subject to the Canon’s proscriptions. Thus, we join our counterparts in New Jersey, Massachusetts, and Vermont in concluding that "the ordinary courtesy of the judge in accompanying his or her spouse to a political gathering of any kind would have to be foregone." Vermont Ad. Op. 2728-10 (collecting opinions). Accordingly, under Canons 2B and 7A(c), the judge should not attend the campaign kick-off, a cocktail party for the campaign, political rallies in support of his or her spouse, or similar events. Although the Board’s conclusion is somewhat more restrictive than that of some of its counterparts, many other jurisdictions’ rules specifically permit attendance at and participation in political events. See Vt. Ad. Op. 2728-10 (collecting advisory opinions allowing judges to participate in political events). In light of Colorado’s apolitical system of selecting judges, however, a permissive approach in which judges are allowed to participate in political affairs is inappropriate.

Nevertheless, we agree with many of our sister jurisdictions that not all gatherings attended by a candidate during the course of a campaign will necessarily be considered political. As the Massachusetts Advisory Board observed, "[j]ust because a candidate walks in the door, an event or activity that the public would perceive as religious, social, civic or recreational in nature is not converted into a political gathering so long as the candidate does not use it as an occasion to seek political support, raise money for the campaign, or make political speeches." See Mass. Ad. Op. 99-16. Thus, the judge should make a decision as to whether a particular event is political. In making that decision, the judge should consider why the judge and spouse are attending, whether the judge would have done so even if the spouse was not a candidate, whether the event would have been held if there was no campaign, who is sponsoring the event, what the spouse plans to do there, whether the spouse views the event as an opportunity to enhance his or her candidacy, and whether the average citizen would perceive the event as political in nature. Id. Thus, the judge may attend informational meetings (such as those sponsored by Common Cause or the League of Women Voters) where all candidates are present and the event is designed to inform the general electorate, rather than to garner support for any one particular candidate. At such events, of course, the judge should maintain a low profile and should not speak publicly, nor should the judge be introduced by title. Id.

In addition to avoiding political events, the judge should refrain from engaging in other activities in support of the spouse’s candidacy that trade on the prestige of the judicial office or constitute a prohibited endorsement. While the Board recognizes that, as a matter of common sense, the public would desire certain basic information about the candidate and would perceive that one spouse would support the efforts of the other in a campaign, it cautions that the judge should take care not to cross the line between acceptable and, indeed, expected, familial support to activity that improperly lends the prestige of the judicial office to advance the interests of the spouse. Accordingly, a judge should not allow campaign signs promoting the spouse’s candidacy to be placed on real estate jointly owned by the judge and spouse, wear a campaign button in public or in his or her chambers to support a spouse’s candidacy, display a campaign sign or bumper sticker on the judge’s car or in the judge’s chambers in support of the spouse’s candidacy, or speak publicly in support of his or her spouse’s campaign. Similarly, the judge may not permit funds from a joint account to be used toward the campaign; the judge must ensure that the spouse creates a separate account, for campaign purposes, to which the judge does not contribute.

A judge’s photograph, however, may appear in the spouse’s campaign literature along with an identification of the judge by name as long as the judge is identified and depicted only as a spouse and not as a member of the judiciary. Accordingly, the words "judge," "honorable," or other references to title should not accompany the picture, and the photograph should not show the judge in judicial robes. Family pictures and names are biographical information about a candidate and a candidate’s family, not a prohibited "public endorsement" within the meaning of Canon 7A. Moreover, when the candidate uses the family photograph with nothing to indicate the occupation of the candidate’s spouse, the prestige of the office is not being used to assist the candidate. Our conclusion that a judge may allow the use of his or her photograph in campaign literature is consistent with the opinions of the majority of other jurisdictions. See, e.g., Vt. Ad. Op. 2728-10; Okla. Jud. Eth. Op. 200-6.; Kan. Ad. Op. JE3; Ohio Ad. Op. 2001-1; N.M. Ad. Op. 96-02; Fla. Ad. Op. 92-40; N.Y. Ad. Op. 96-07; but see Ala. Ad. Op. 82-143; Tex. Ad. Op. 180.

RESOLUTION AND OPINION

The judge need not dissuade his or her spouse from seeking non-partisan elected office, but the judge may not attend political events in support of the campaign, nor may the judge engage in other activities that could be perceived as endorsing the spouse or as lending the prestige of the judicial office to the spouse’s campaign. The judge may, however, attend nonpolitical events and permit use of the judge’s photograph as part of a family photo in the spouse’s campaign literature provided the judge is not identified as such.

FORMALLY FINALIZED AND EFFECTIVE this 25th day of November 2005, by the Colorado Judicial Ethics Advisory Board.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

 

NOTE: Forms and Attachments can be found at http://www.courts.state.co.us.

 

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


Back