Why Colorado’s Update to Child Custody Case Court Proceedings Might Have Unintended Consequences

Marlana Caruso
By: Marlana A. Caruso
PublishedMay 30, 2024
4 minute read

In May 2024, Colorado legislators passed a bill that will make it easier to limit how much time a parent can spend with a child if accusations of violence or abuse have been made against them. I have been following HB24-1350’s trek through the legislature, and as a practicing family law attorney, I have some concerns regarding the implications the changes will have for cases moving forward. 

Family law judges often rely on Child and Family Investigators (CFIs) and Parental Responsibility Evaluators (PREs) to help them make tough choices regarding parenting time and decision-making for parties when there is a disagreement about what is in the best interest of a minor child. 

The shortcomings in the family law system have become glaringly evident as more children and parents are placed into dangerous situations via parenting time orders with an abusive parent, often with fatal consequences. Due to worries about how complex domestic situations are handled, HB24-1350 mandates stricter expert training and clearer requirements for what experts must consider when making recommendations. It also limits parenting time options in cases involving claims of domestic violence or child abuse.  In addition to more training for judges and experts, the bill expands the court’s ability to consider the child’s wishes. 

The reform of the family court system and the required additional training for its officers is a good thing. Colorado children and families deserve better. However, whether this legislation creates more opportunities for manipulation of the courts by overzealous parties during custody disputes remains to be seen. 

HB24-1350 Modifies Multiple Statutes

The language in HB24-1350 introduced new or amended definitions for legally established terms, including but not limited to:

  • Coercive control
  • Best interests of the child

The bill gives nearly a dozen examples of what constitutes coercive control or how this pattern of behavior seeks to exert control over someone and deny them their autonomy. 

However, the bill does not directly say how much evidence is needed to demonstrate coercive control. In other words, the legislation didn’t give the courts a way to measure the quantity required to apply the requirements. Would a single incident of a described behavior be sufficient to trigger these other limitations or will it take a larger reference for the court to establish a pattern of behavior?  

HB24-1350 Opens CFIs Up to Liability

CFIs make recommendations about custody, visitation, and decision-making based on interviews, document reviews, and parent-child relationship assessments grounded in legal observation. A judge may also ask a CFI to testify on their findings to help him or her determine the best situation for the child. 

Unlike PREs, which are licensed mental health professionals – think psychologists, social workers, therapists – CFIs are often attorneys with an intimate knowledge of Colorado family law. Despite their advanced degrees and specialized training, PREs don’t always have the same familiarity with the laws that CFIs rely on to conduct their investigations.

Each evaluator provides essential expertise to the court in child custody cases. However, under HB24-1350, CFIs are exposed to liability without the appropriate mental health background that a PRE would carry. 

“A person SHALL NOT testify as an expert witness regarding a parental responsibilities or parenting time evaluation that the person has performed pursuant to this section unless the court finds that the person is qualified as competent, by training and experience, in the areas of: 

The effects of domestic violence on children, adults, and families, including the connection between domestic violence and trauma on children, coercive control, child abuse, and child sexual abuse in accordance with section 14-10-127.5. The person’s training and experience must be provided by recognized sources with expertise in 8 domestic violence and the traumatic effects of domestic violence AND COERCIVE CONTROL in accordance with section 14-10-127.5.”

The Result: A More Limited CFI Pool

CFIs currently listed on the statewide eligibility roster are withdrawing their names from eligibility to work on child custody cases. Some no longer have the appropriate qualifications to perform this work. But even with the outlined training, a CFI without a mental health background is likely unqualified to speak to the subject matter as outlined in the legislation. 

These changes could further limit an already dwindling list of available experts to assist in these matters. This trend will extend the life span of litigated cases, stretch the limited resources that many families have, and inundate those experts who are willing to be involved. 

HB24-1350 Gives More Weight to Children’s Statements

Children are among our most vulnerable. They rely on adults to care for them because their bodies and minds are still developing. Children are also impressionable. 

The courts have always considered the child’s wishes when considering their best interests while also taking appropriate measures to protect them from traumatic situations. The qualifier for the weight that a child’s preference is provided was often the child’s age and maturity in an attempt to determine if the child’s opinion was independent of their parents or a result of potential influence.  

Judges have always had the option to conduct in-camera interviews with involved children, though admittedly, many would find it inappropriate and not in the child’s best interest. There was a distaste for directly involving children in litigation, effectively pitting them against a parent. The usual way for a child’s preference or concerns to be addressed in the case was through a CFI, PRE, or another appointed expert.  

More Weight Given to Accusations of Abuse

HB24-1350 was brought forth in part to bring child custody case experts into compliance with Kayden’s Law, a federal law that incentivizes states to offer at-risk children and adults an adequate level of protection. 

Kayden’s Law requires allegations of domestic violence and assault to be verified, meaning that charges have been brought against the abuser. There’s a paper trail. Unverified allegations have their place too, but they don’t carry as much weight. Colorado’s version of Kayden’s Law omits the requirement for documentation. In this sense, the Colorado bill is less restrictive than the federal version.  

Colorado references “an allegation” multiple times throughout the modified language of the affected statutes. In fact, if a child accuses a parent of domestic violence, child abuse, child sexual abuse, child emotional abuse, or coercive control – the Court must make a statement on the record as to why unsupervised parenting time was determined to be in the child’s best interest.  

In a congested and understaffed system that is overwhelmed with questions of mental health, domestic violence, or substance abuse, the path of least resistance is to order supervised parenting time. While the most conservative option assists with the immediate potential of a safety issue, this is a major violation of an accused parent’s rights — especially if that parent has been wrongfully accused. 

Reinforces Post-Separation Abuse Committed by Some Parents

Unfortunately, I have seen children negatively influenced by their parents, especially in situations where a parent has wrongfully withheld parenting time. Because the judicial system is so backed up, the parent withholding custody has months to influence the child due to the lack of contact with the non-custodial parent. This sort of parental manipulation of children is almost irrevocable. 

Children are children. As parents, it’s our job to influence them, but unfortunately, children are often used as pawns in adult legal matters. I worry that HB24-1350 will exasperate this hard truth. The uncomfortable reality is that the ‘bad apples’ often ruin it for everyone. There are undeniably true outcries of abusive situations that have gone unheaded to detrimental results. But some discredited allegations stem from an overzealous party trying to ‘win’ their case.  

Should we make such sweeping changes that limit a parent’s ability to defend themselves against allegations? 

When did it become guilty until proven innocent? 

You Need an Advocate in Your Child Custody Case

Like it or not, this legislation is the new reality for all upcoming custody disputes in Colorado. Fortunately, Robinson & Henry’s Family Law Team stays on top of the latest developments so we can adjust our strategies as we fight for our clients. Call 303-688-0944 to begin your case assessment.

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