Search



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

TCL > March 2008 Issue > Court Business

The Colorado Lawyer
March 2008
Vol. 37, No. 3 [Page  111]

© 2008 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

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears exactly as submitted by the court and has not been edited by the staff of The Colorado Lawyer.


United States Bankruptcy Court for the District of Colorado

In the Matter of the Implementation of
Mandatory Electronic Filing Procedures for Regular Filers
Fourth Amended General Procedure No. 2001-8

WHEREAS the Federal Rules of Procedure (Civil Rule 5(e), Bankruptcy Rules 5005(a)(2), 7005, 8008, 9011 and 9029) provide that a court may establish practices and procedures for the filing, signing and verification of documents by electronic means; and

WHEREAS, recommendations regarding administrative policies and procedures for filing, signing and verifying documents by electronic means have been tendered to the court by various focus groups consisting of judges, attorneys, practitioners, court personnel, and experts in related subject matter areas; and

WHEREAS, proposed Administrative Procedures for Electronic Case Files (ECF Procedures) based upon those focus group recommendations have been reviewed by the court; and

WHEREAS, the ECF Procedures are consistent with and further the responsibility of the clerk for the control of the court’s docket pursuant to Fed.R.Bankr.P 5003 and 5005, including safeguarding the integrity of the court’s docket, pursuant to the provisions of the Case Management/Electronic Case Files (CM/ECF) system of the United States Courts; and

WHEREAS, the ECF Procedures provide a means for the signature on documents through a secure mechanism for the creation and issuance of individual passwords; and

WHEREAS, the ECF Procedures provide adequate means for the filing, review and retrieval of documents by parties who are not able to access CM/ECF from a remote location; it is therefore

ORDERED that:

1. In lieu of filing petitions, pleadings and other papers conventionally in paper format as prescribed in Local Bankruptcy Rule 904 and other rules, attorneys who file, on average, one or more documents per week and other Electronic Filers authorized by the Court shall filed documents in an electronic format. Any attorney who signs a document as an attorney, and is an attorney required to file electronically, must file the document electronically (the only exclusions to this requirement are listed in the Second Amended Administrative Procedures for Electronic Case Files). Attorneys who file, on average, less than one document per week may, at their discretion, file documents in an electronic format. Except as otherwise provided in Paragraph II.A.7. of the Second Amended Administrative Procedures for Electronic Case Files, all documents filed with the Court, either electronically or via paper format, shall be converted to and stored as electronic documents. The electronic files, consisting of the images of documents filed in cases or proceedings and documents filed by electronic means, shall constitute the official record of the court together with any other records kept by the clerk. The Court may, in any matter at any time, request that a copy of a document be submitted to the judge in paper format.

2. The ECF Procedures attached hereto as Exhibit A (Amended Administrative Procedures for Electronic Case Files) [available at www.cob.uscourts.gov/gepror.asp] are approved and shall apply to all attorneys who file, on average, one or more documents per week. To the extent feasible, the ECF Procedures shall also apply to all documents filed in this Court, whether such documents are filed electronically or by way of paper format.

3. The use of an attorney’s password to file a document electronically shall constitute the original signature of that attorney for purposes of Fed.R.Bankr.P. 9011.

4. Each attorney, law firm or other person that obtains a password for electronic filing shall be responsible for its security and use. No attorney, law firm or other person shall knowingly permit or cause to permit an Electronic Filer’s password to be utilized by anyone other than an authorized member, employee or agent of the Electronic Filer’s law firm.

5. The request for and receipt of a CM/ECF password from the court shall constitute a request for electronic service pursuant to Fed.R.Bankr.P. 9036 of all notices, orders, decrees and judgments issued by the court, and except as otherwise provided in the ECF Procedures, a waiver of the right to receive notice and service from the court by mail. Electronic Filers will receive electronic notification of notices, orders, decrees and judgments in cases where they enter their appearance.

6. The electronic filing of a document in accordance with the ECF Procedures shall constitute entry of that document on the docket kept by the clerk pursuant to Fed.R.Bankr.P. 5003.

7. All orders, decrees, judgments and proceedings of the court shall, in accordance with the ECF Procedures, be entered on the docket kept pursuant to Fed.R.Bankr.P. 5003 and for the purposes of Fed.R.Bankr.P. 9021.

8. To the extent that this order or the ECF Procedures is inconsistent with the Local Bankruptcy Rules and Forms for the District of Colorado dated December 1, 1999, this order and the ECF Procedures shall have precedence.

9. This order or the ECF Procedures may be amended or superseded by amendments to the Local Bankruptcy Rules and Forms for the District of Colorado as the court deems necessary.

10. This order shall become effective on January 1, 2008, and shall apply to all cases and proceedings pending on or filed after that date.

Dated: December 31, 2007

By the Court:

Howard R. Tallman, Chief Bankruptcy Judge
Sidney B. Brooks, Bankruptcy Judge
A. Bruce Campbell, Bankruptcy Judge
Elizabeth E. Brown, Bankruptcy Judge
Michael E. Romero, Bankruptcy Judge


Colorado Supreme Court Rules Committee

Rule Change 2008(01)
Appendix A to Chapter 27
Colorado Probate Code Forms
Amended and Adopted

(Forms in this Appendix are available from the Colorado courts Web
page at www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm.)

The following forms replace current CPC forms.

JDF 806 Notice of Hearing to Interested Persons Replaces CPC 2-IP
JDF 810 Visitor’s Report Replaces CPC 32-V

NEW FORMS

(NEW) JDF 830  Letters of Guardianship—Minor
(NEW) JDF 849  Letters of Guardianship—Adult
(NEW) JDF 857 

Petition for Appointment of Co-Guardian or Successor Guardian Pursuant to § 15-14-112(1)-(3), C.R.S.

(NEW) JDF 858  Order Appointing Co-Guardian or Successor Guardian
(NEW) JDF 863 

(Letters of Conservatorship—Minor

(NEW) JDF 879 

Petition for Appointment of Co-Conservator or Successor Conservator Pursuant to § 15-14-112(1)-(3), C.R.S.

(NEW) JDF 880 

Letters of Conservatorship—Adult

(NEW) JDF 884  Order Appointing Co-Conservator or Successor Conservator

Amended and Adopted by the Court, En Banc, January 17, 2008, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Rule Change 2008(02)
Chapter 28
Colorado Rules of Juvenile Procedure
Amended and Adopted

Rule 3.5 Jury Trial

(a) In any action in delinquency in which a juvenile is alleged to be an aggravated juvenile offender, as described in section 19-2-516, C.R.S. or is alleged to have committed an act that would constitute a crime of violence, as defined in section 18-1.3-406, C.R.S., if committed by an adult, the juvenile or the district attorney may demand a trial by a jury of not more than six persons except as provided in section 19-2-601(3)(a), C.R.S., or the court, on its own motion, may order a jury trial, with the exception that a juvenile is not entitled to a trial by jury when the petition alleges a delinquent act which is a misdemeanor, a petty offense, a violation of a municipal or county ordinance, or a violation of a court order. When requesting a jury trial pursuant to this rule, a juvenile is deemed to have waived the right to have an adjudicatory trial within 60 days and is subject instead to an adjudicatory trial within 6 months. Unless a jury is demanded pursuant to subsection (1) of section 19-2-107, C.R.S., it shall be deemed waived.

Amended and Adopted by the Court, En Banc, January 17, 2008, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

Attention Readers:
For complete text of rule changes, including forms and versions showing highlighted revisions, please visit the Court’s website: www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm.


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 2008-01
(Finalized and Effective January 25, 2008)

ISSUE PRESENTED

A women’s advocacy group has asked the requesting judge to meet with it on an individual basis so that the group can both share with the judge notes and statistics the group has compiled regarding the judge’s rulings on protective orders and make recommendations to the judge on how she should handle cases involving domestic violence. The judge has raised a concern that meeting with the group could create an appearance of impropriety and give rise to the impression that the group is in a special position to influence her. May the judge meet with the advocacy group?

CONCLUSIONS

The judge may, at her discretion, meet with a special interest group, but the judge is not required to do so. In assessing whether to grant a request for a meeting, the judge should require the special interest group to submit a written request specifying the purpose of the meeting. If the purpose is not improper and the judge wishes to grant the request, she should send a written response laying out ground rules for the meeting. At the meeting itself, the judge should ensure that the group is not given any impression that it is in a special position to influence the judge, and the judge should not engage in any ex parte communications with the group regarding any pending or impending matters.

APPLICABLE CANONS OF
THE CODE OF JUDICIAL CONDUCT

Canon 1 broadly sets forth that a judge should uphold the integrity and independence of the judiciary.

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities. Canon 2B specifies that 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 3A1 directs that a judge should be unswayed by partisan interest, public clamor, or fear of criticism. Canon 3A4 establishes that a judge should neither initiate nor consider ex parte communications concerning a pending or impending proceeding. Canon 3A6 provides that a judge should abstain from public comment about a pending or impending proceeding in any court; a judge is not prohibited, however, from explaining for public information the procedures of the court.

Canon 4A encourages a judge to educate the public concerning the law, the legal system, and the administration of justice.

DISCUSSION

Judges often are asked to meet with representatives of special interest groups. Such requests can place in tension two goals of the Canons: fostering transparency about the work of the courts, on the one hand, and maintaining the independence of the judiciary and avoiding the appearance of impropriety on the other hand.

Under the facts presented in this request, there is nothing in the Canons that would prohibit the judge from meeting with the advocacy group. There is no indication that the group wishes to discuss any pending or impending case, nor is there any suggestion that the judge will be swayed or intimidated by fear of public criticism. Thus, the judge may meet with the group if she so wishes. It should be emphasized, however, that nothing in the Canons requires a judge to entertain requests for private meetings.

In assessing whether to honor the request for a meeting with a special interest group, the judge should consider the following guidelines. See Wis. Ad. Op. 98-13 (laying out a series of guidelines on which the following material is modeled). First, the judge would be well advised to require the group seeking the meeting to submit a written request setting forth the specific purpose of the meeting. The request can be declined outright as a matter of chambers policy, or on an ad hoc basis, depending on the circumstances of the particular request. Alternatively, the request can be granted, in which case acceptable parameters for the meeting should be outlined in a written reply. A sample letter that judges might consider using is attached as Appendix A. [Appendix A follows Opinion 2008-01.] Parameters include the specific subject of the meeting, the particular items to be discussed, a statement that the group will be in no special position to influence the judge by virtue of the meeting, and a clear explanation that the judge will terminate the meeting if the discussion includes an ex parte communication or otherwise strays out of bounds. 

The judge also might consider whether, under the circumstances of the request, to include other interested individuals or groups, for example, a probation officer or lawyers for the defense and prosecution. Additionally, the judge should give careful thought to the location of the meeting and to whether to have a record made of the discussion. Documenting the discussion could avoid any future misunderstandings of what transpired in the meeting and protect the judge from embarrassment if he or she were later misquoted.

At the meeting itself, the judge must be careful to avoid taking a position on any policies advocated by the special interest group, and the judge must ensure that the group is not given the impression that it is in a special position to influence the judge. To avoid giving the impression or appearance that the judge might be swayed, the judge would be well advised to keep the conversation on a general level. The judge must immediately terminate the discussion if a pending or impending case is mentioned.

In the context of the instant request, the judge here should consider the preceding guidelines in determining whether, in her discretion, to grant the advocacy group’s request. In the event that she elects to meet with the advocacy group, she should make clear, given the advocacy group’s stated purpose of making recommendations to the judge on how she should handle future domestic violence cases, that she will not be specially influenced or swayed by the group.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 25th day of January 2008.

Board member Dottie Wham does not participate in this opinion.

The Hon. Dennis Graham (judge member)
The Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
The Hon. Morris W. Sandstead, Jr. (judge member)
The Hon. Pattie P. Swift (judge member/board chair)
Dottie Wham (citizen member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)
Daniel Cordova, Esq. (staff to the board)


Appendix A:
Sample Letter

Dear <SPECIAL INTEREST GROUP REPRESENTATIVE>,

I am in receipt of your letter dated <DATE> requesting a meeting with me regarding <SUBJECT OF MEETING>.

Promoting transparency in the work of the courts is an important part of my role as a judge. Meeting with groups and individuals provides me with an opportunity to educate the public about general court procedures and the complexity of judicial decision-making, and it can help to enhance my understanding of a range of community perspectives. To that end, I have decided to grant your request, provided that the following ground rules are observed.

Our discussion will be limited to <SUBJECT OF THE MEETING>. Under the Code of Judicial Conduct, the ethical canons by which I am bound, I cannot discuss with you any pending or impending cases, and I will terminate the meeting if our discussion strays into this territory. Additionally, I must also make clear that <GROUP NAME> will be in no special position to influence me by virtue of this meeting. Further, I may include other individuals or groups who might be interested in attending the meeting, and I reserve the right to have chambers staff in attendance or to record our discussion in order to avoid any future misunderstandings about the content of our discussion.

Provided that you agree to these conditions, it would be my pleasure to meet with you. I look forward to our discussion.

Sincerely,
<JUDGE>


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: www.colorado.gov/dpa/doah.

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; or visit www.colorado.gov/dpa/doah.

Chief Justice Directive 04-08, Amended
Directive Concerning Court Appointments
of Child and Family Investigators Pursuant to C.R.S. § 14-10-116.5

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 14-10-116.5, C.R.S (2005). It is intended to apply to all child and family investigators appointed pursuant to section 14-10-116.5, 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. The statute provides that a CFI may be an attorney, a mental health professional or any other individual whom the court believes is able to fill this role.

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. In response to questions, the Other Professionals made several amendments in 2007 to provide clarification on access to CFI reports and to the CFI’s role before the court.

The standards, duties of the courts, and the model CFI appointment order set forth in this CJD have been drafted with the knowledge that the role of CFI 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 CFI 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 CFI 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 14-10-116.5, C.R.S provides for the appointment of child and family investigators in domestic relations cases. The CFI 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 14-10-116.5, 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 14-10-116.5, C.R.S.

III. CFI STANDARDS

A. GENERAL PRINCIPLES

1. THE CFI SHALL ACT PROFESSIONALLY

2. THE CFI SHALL MAINTAIN OBJECTIVITY

B. ROLE OF THE CHILD AND FAMILY INVESTIGATOR

3.  THE CFI SERVES AS AN INVESTIGATIVE ARM OF THE COURT

4. THE CFI SHALL NOT SERVE INCONSISTENT DUAL ROLES

5. THE CFI MAY MOVE TO THE ROLE OF PARENTING COORDINATOR OR DECISION-MAKER

C. DUTIES OF THE CHILD AND FAMILY INVESTIGATOR

6. THE CFI SHALL MAINTAIN COMPETENCE THROUGH TRAINING

7. THE CFI SHALL ACKNOWLEDGE WHEN AN ISSUE IS BEYOND HIS OR HER COMPETENCE

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

9. THE CFI SHALL HAVE AGE-APPROPRIATE COMMUNICATION WITH THE CHILD/REN INVOLVED

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

11. THE CFI SHALL PREPARE A CLEAR AND TIMELY REPORT

12. THE CFI SHALL PROVIDE COPIES OF HIS OR HER FILE

13. THE CFI SHALL MAINTAIN CONFIDENTIALITY

14. THE CFI SHALL REQUEST TERMINATION OF THE APPOINTMENT WHEN PERMANENT ORDERS OR POST-DECREE ORDERS ARE ENTERED

D. COMMUNICATIONS

15. THE CFI SHALL DEVELOP WRITTEN POLICIES FOR THE PARTIES

16. THE CFI SHALL DEVELOP WRITTEN POLICIES FOR COUNSEL

17. THE CFI SHALL REVIEW THE COURT’S ORDER OF APPOINTMENT

18. THE CFI SHALL HAVE NO PRIVATE OR EX PARTE COMMUNICATIONS WITH THE COURT

A. GENERAL PRINCIPLES

STANDARD 1
THE CFI 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 CFI 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 CFI 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 CFI 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 CFI should be aware of his or her position as an investigative arm of the court.

STANDARD 2
THE CFI SHALL MAINTAIN OBJECTIVITY

The CFI shall strive to maintain objectivity and independence. If the CFI 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. S/he should even guard against the appearance of being aligned with one side over the other.

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 CFI should request removal from the case.

B. ROLE OF THE CHILD AND FAMILY INVESTIGATOR

STANDARD 3
THE CFI SERVES AS AN INVESTIGATIVE ARM OF THE COURT

A CFI is appointed to serve as an investigative arm of the court. The CFI shall be subject to direct and cross examination by both parties if called as a witness. 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 CFI 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 CFI would be helpful and when preparing the order of appointment.

This flexibility means that within the scope of the investigative role, a CFI may use the information s/he has gathered in ways that facilitate or encourage settlements if appropriate. A CFI 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 CFI can help de-escalate conflict and help the parties refocus on the needs of their child/ren.

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

STANDARD 4
THE CFI SHALL NOT SERVE INCONSISTENT DUAL ROLES

The CFI 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 prior to termination as his or her role as a CFI.

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 CFI 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 Advice. Because a CFI 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 CFI and the CLR are in conflict with each other. Section 14-10-116.5 (1), C.R.S. specifically prohibits this dual role.

E) Prior Contacts. A CFI 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 CFI should not serve in any role that would require her/him to arbitrate disputes between parties since this would require a CFI to take positions that would compromise her/his ability to serve as the information gathering, investigative arm of the court.

STANDARD 5
THE CFI MAY MOVE TO THE ROLE OF PARENTING
COORDINATOR OR DECISION-MAKER

In some cases a CFI may agree to move to the separate role of parenting coordinator (hereinafter "PC") decision-maker (hereinafter "DM") or arbitrator after all of his or her duties as CFI 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 CFI who accepts an appointment as a PC, DM or arbitrator shall not be appointed as a CFI 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 CFI agree, it may be appropriate to appoint the CFI to the role of PC, DM or arbitrator by a new appointment order clearly outlining the new duties. PCs, DMs and arbitrators are being used with some frequency in Colorado to assist high conflict families which have ongoing disputes and their role is defined by statute. These CFI standards are not meant to apply to those serving in a PC, DM or arbitrator type role.

C. DUTIES OF THE CHILD AND FAMILY INVESTIGATOR

STANDARD 6
THE CFI SHALL MAINTAIN COMPETENCE THROUGH TRAINING

The CFI 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 CFI achieves competence through some combination of education, specialized training, supervision, consultation, and professional experience. S/he has a responsibility to develop and maintain the necessary understanding of the applicable law and the professional standards that govern his or her duties and participation in legal proceedings. The "relevant areas" in which a CFI 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;

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 CFI is appointed;

Interview techniques for interviewing children and others.

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

STANDARD 7
THE CFI SHALL ACKNOWLEDGE WHEN AN ISSUE
IS BEYOND HIS OR HER COMPETENCE.

A CFI 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 CFI 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 CFI 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 CFI SHALL COLLECT DATA AND CONDUCT
AN INVESTIGATION SUFFICIENT TO ALLOW THE
CFI TO PROVIDE COMPETENT OPINIONS

A CFI 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 CFI 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 CFI 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 set forth specific areas to investigate under the order of appointment, and the CFI to tailor his or her investigation accordingly.

A CFI 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 CFI 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 CFI 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 CFI SHALL HAVE AGE-APPROPRIATE
COMMUNICATION WITH THE CHILD/REN INVOLVED

The CFI 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 CFI 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 CFI 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 CFI SHALL REPORT CHILD ABUSE TO
THE PROPER AGENCY AND THE COURT

In cases in which the CFI suspects or knows that the child/ren are being neglected or abused, the CFI 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 CFI 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 CFI should develop plans to address the problem and should include them in any report or recommendation to the court.

STANDARD 11
THE CFI SHALL PREPARE A
CLEAR AND TIMELY REPORT

The CFI’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 CFI 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.

In subsequent actions, the report should not be relied upon by the court or the parties unless the CFI is subject to direct and cross examination.

STANDARD 12
THE CFI SHALL PROVIDE COPIES
OF HIS OR HER FILE

The CFI shall, if requested, make available to counsel or a party not represented by counsel in the case or the child’s legal representative (if appointed in this case) his or her file of underlying data or reports prior to any scheduled hearing for which the CFI was appointed, and only after the CFI report has been filed. This specifically includes disclosure of CFI notes, witness statements, completed questionnaires and the results of the psychological testing (the report). Underlying data for psychological testing can only be released to qualified psychologists.

COMMENT

A CFI 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 CFI has consulted, except that, if a CFI 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. Counsel or parties seeking release of the file or underlying data or report subsequent to the hearing for which the CFI was appointed must request a court order to release the file. This directive is not intended to abridge or modify existing law. Where state or federal law governs the release of confidential records, those laws shall apply. Where secondary disclosure is prohibited by state or federal law, the court shall transmit information under confidential cover.

STANDARD 13
THE CFI SHALL MAINTAIN CONFIDENTIALITY

The CFI shall maintain the confidentiality of his or her file and report, and shall disclose either only to the parties and their counsel or by court order.

COMMENT

The CFI 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; see also Standard 12 above. Because a child and family investigator’s report and file are court documents under seal, a CFI has no authority to produce these sealed court documents nor to disclose their contents absent consent and an order from the appointing court.

STANDARD 14
THE CFI SHALL REQUEST TERMINATION OF
THE APPOINTMENT WHEN PERMANENT ORDERS
OR THE POST-DECREE ORDER 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 CFI shall request that the appointment be terminated.

COMMENT

Once permanent orders enter, a child and family investigator’s appointment pursuant to section 14-10-116.5, C.R.S. terminates. It is an abuse of the court’s discretion to continue the CFI appointment beyond permanent orders, or adjudication of post-decree parental responsibility issues. The role of the CFI 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 CFI 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 CFI has completed his or her work. Nor can the court in its order delegate to a CFI 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 CFI SHALL DEVELOP WRITTEN POLICIES
FOR THE PARTIES

The CFI 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 CFI 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 CFI exists, then information should be included about how to contact the court should a concern or complaint about the CFI arise.

It is also the responsibility of a CFI 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 CFI SHALL DEVELOP WRITTEN POLICIES
FOR COUNSEL

The CFI 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 CFI 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 CFI and counsel, they should reduce the agreement to writing before the CFI begins work on the case.

STANDARD 17
THE CFI SHALL REVIEW THE COURT’S ORDER
OF APPOINTMENT

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

COMMENT

A CFI 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 CFI should take steps to ensure that the conflict is resolved. If, for example, the order requires the CFI 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 CFI 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
THE CFI SHALL HAVE NO PRIVATE OR EX PARTE
COMMUNICATIONS WITH THE COURT

The CFI 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 CFI 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 CFI attends a status conference or court hearing, issues could be raised there. If time were of the essence, a CFI may be able to arrange a conference call to the court. Finally, a CFI 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 CFI 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 14-10-116.5

A. THE COURT SHALL ENSURE COMPLIANCE WITH THE CFI STANDARDS

B. THE COURT SHALL MAKE ITS ORDERS CLEAR

C. THE COURT SHALL ALLOCATE THE COSTS FOR CFI SERVICES AND ENFORCE ITS PAYMENT ORDERS

D. THE COURT SHALL TIMELY TERMINATE THE CFI’S APPOINTMENT

E. THE COURT SHALL NOT APPOINT THE CFI TO INCONSISTENT DUAL ROLES

F. THE COURT SHALL ENSURE THE CONFIDENTIALITY OF CFI REPORTS

A. THE COURT SHALL ENSURE
COMPLIANCE WITH THE CFI STANDARDS

The Court shall appoint a qualified CFI 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 CFI is the investigative arm of the court, it is the court’s responsibility to ensure that the CFI is qualified, and to monitor compliance with this Chief Justice Directive. A CFI is subject to cross and direct examination. 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 CFI investigations.

B. THE COURT SHALL MAKE ITS ORDERS CLEAR

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

COMMENT

The CFI 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. The court order should set forth the scope of service. In appointing a CFI, the court needs to take into account the financial circumstances of the parties.

In setting forth the CFI’s duties, the court should provide for the least intrusive means of ascertaining the child’s best interests. Psychological and or alcohol and drug testing shall not be completed without agreement of the parties or court order. The court shall not order expanded testing unless warranted by special circumstances. Those special circumstances should be articulated in the court order. If necessary the CFI and/or parties can return to the court to request an expanded order. CFIs who routinely use psychological testing shall disclose their use of psychological testing to the parties.

C. THE COURT SHALL ALLOCATE THE COSTS
FOR CFI SERVICES AND ENFORCE ITS
PAYMENT ORDERS

The court shall make clear to all parties, orally and in writing, how the CFI 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 14-10-116.5(3), C.R.S. requires the court to enter an order for costs, fees and disbursements for the CFI 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 CFI state paid cases. Refer to CJD 04-06 for attorney CFI state paid cases.

It is the responsibility of the court to enforce its order concerning payment of the CFI through its contempt power. When non-payment or partial payment issues arise, the CFI 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 CFI 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.

D. THE COURT SHALL TIMELY TERMINATE
THE CFI’S APPOINTMENT

The Court shall terminate the CFI’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
THE CFI TO INCONSISTENT DUAL ROLES

The Court shall not appoint the CFI 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 CFI REPORTS

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

COMMENT

CFIs 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 domestic case attempt to subpoena the highly personal information contained in their files and reports. The court that appointed the CFI must perform an in camera review of the requested documentation to determine what may be released and/or copied.

In subsequent actions, the report should not be relied upon by the court or the parties unless the CFI is subject to direct and cross examination.

See the Comment under III.C. Standard 13.

Effective September 1, 2004. Amended to reflect statutory amendments and effective November 18, 2005.

CJD 04-08 corrected as to statutory references only on the 23rd day of January, 2006 in Denver, Colorado.

Amended to provide clarification on issues related to the nature of the CFI’s role and records access and made effective this 2nd day of January 2008 in Denver, Colorado.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court


Chief Justice Directive 85-22, Amended
Rate of Interest on Judgments Which Are Appealed
Done January 31, 2008

Pursuant to the cited references, the Colorado Secretary of State has certified the following rates of interest on judgments that are appealed:

Effective Date

   Rate  

Date Certified

January 1, 1998    

7%

   January 1, 1998
January 1, 1999 

7%

   January 4, 1999
January 1, 2000 

7%

   January 1, 2000
January 1, 2001 

8%

   January 1, 2001
January 1, 2002 

3%

   January 1, 2002
January 1, 2003 

3%

   January 2, 2003
January 1, 2004 

4%

   January 2, 2004
January 1, 2005 

5%

   January 1, 2005
January 1, 2006 

7%

   January 3, 2006
January 1, 2007 

8%

   January 2, 2007
January 1, 2008 

7%

   January 7, 2008

APPROVED BY THE CHIEF JUSTICE

Mary J. Mullarkey

 

© 2008 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=2008.


Back