The Parental Evaluation Gap: How the new CFI Rules have created a problem for divorcing middle class parents and possibly a new opportunity for licensed therapists.

Happy Holidays Everyone!
I know for many people who are contemplating divorce that the holiday season can be very trying and I imagine that if you are a therapist you are very busy helping people through this time.  In fact, statistically, most people wait until the holidays are complete before they move forward with a divorce.  Understandably so.

New Need for 2012 custody cases 
However, I expect that in January, as in all prior years, there will be a large number of people calling who want to begin the divorce process.  This year there will be a new issue facing parents that are divorcing who cannot agree on parenting time schedules and decision making processes.  In the past, they would typically hire a CFI, (Child and Family Investigator) to assess the situation and make a report to the court on what parenting plan they see is in the best interests of the children.  Given the changes to the CFI rules, this general evaluation is no longer possible.  The new rules require that CFI's do narrow, fact based investigations only, with no analysis of the parent's abilities or psychological issues.  There is also a $2,000.00 cap on CFI investigations and reports to assure that they are not broad or too in-depth.  Many CFI's have said they will no longer do this work due to the financial cap.

So, if parents need a full child custody assessment the only other court ordered option available is what is called a Parenting Responsibilities Evaluation (PRE).  This can only be done by a licensed professional therapist (CFI's can be done by attorneys or non-licensed individuals).  In the past PRE's were VERY in depth and often cost more than $10,000.00 and were most often done by PhD's when there were allegations of parental psychological or addiction issues.   This is why CFI evaluations had become the primary custody evaluation tool for middle income parents.  As you can see, this creates a major gap in what is available in court ordered child custody evaluations.

New Opportunity to fill the GAP
For 2012 we are going to need a new form of a Parental Responsibilities Evaluation.  One that can fill the gap left by the narrowing of CFI investigations.  We need a PRE that is somewhat abridged, deals with the specific issues at hand, assesses the family dynamics, includes psychological analysis as needed and one that can be done for a reasonable fee.  This would be a breakthrough for our legal system in that it assures that you are using a licensed professional therapist for evaluating parental abilities and recommending a parenting plan while also making it affordable to the average parent.

Who can fill this gap?
Here are the qualifications for a Parental Responsibilities Evaluator:

1. A licensed Mental Health Professional who is competent by training and experience in the following:
• The effects of divorce and re-marriage on children, adults and families.
• Appropriate parenting techniques
• Child and Adult Psychopathology
• Applicable clinical assessment techniques
• Legal and ethical requirements of a PRE

It seems to me that you do not need to have a PhD to fulfill on these qualifications.  Depending on your specialty, I think that a good number of licensed professional therapists can fit well into these qualifications.

I believe that it is time to create an evaluation service/ tool that makes PRE's viable for the middle class divorce client.  As a family law attorney, I am VERY interested in seeing this developed and I am open to collaborating with therapists that wish to understand what attorney's and parents need to fill the parental evaluation GAP.  Please feel free to get in touch with me at leslie@matthewslaw.com to discuss this opportunity.  I also intend to put together a round table discussion on this topic in the beginning of 2012.  I will let you know on this blog and on our website at matthewslaw.com when it is scheduled.

I do not want to discourage people from continuing work as a CFI.  There is certainly still a need for CFI work.  It will be more narrowly defined by the court and will not go over $2,000 in fees but there will be a higher volume available since many former CFI's will no longer be participating.  The cap also makes CFI investigations available to people on tighter budgets.

I believe that the changes in the CFI rules have presented an opportunity to re-evaluate what is really needed in a full custody evaluation and how it can be done at a reasonable cost.  I am hopeful that the present GAP will be filled with something better than what our system has had in the past and something that will serve children and their best interests in these difficult situations.

Please forward this discussion to any licensed therapist you know who might be interested in designing a great evaluation process for divorcing families who need help deciding what parenting plan is best for their children.

Leslie Matthews

Where's the Money?: collecting child support or maintenance judgements

The Frustration and the Decision to Move Forward or Not:
I speak to a number of people (mostly women) every month about bringing an action against their former spouse for back child support or maintenance.  Sometimes these women have sued before and been frustrated by their inability to collect the judgement. They want to know what it would take and what it will cost them to actually collect the back support and force their ex to resume payments.

I always have a straight conversation with people about the realities of motions for contempt of court, support judgments and garnishment options. It is important to make a good business decision about spending the money for attorneys fees and court costs to collect child support or maintenance owed .  The law suit is only worth the time and money if you can collect sufficient money to cover the fees and costs of the litigation and then some.  You also need to look at the psychological cost of the litigation process itself.  How much do you need the funds?  Is it worth it in terms of the affects on co-parenting?  All these factors need to be considered before proceeding.

Legal Issues and New Case Law:
There are a number of different ways to address unpaid child support or maintenance:

1. Child Support Enforcement:  You can ask Child Support Enforcement to assist you in collecting child support or in  collecting child support and maintenance if you are owed both.  They will not assist you if you are only collecting maintenance.  Pro:  You do not have to pay them to help you and they have the power to revoke the drivers license of the party not paying.  Con:  They are often satisfied to get very low payments and they give people lots of chances to comply.  We saw a case where the ex was asked to pay $25.00 per month on 40,000.00 in back child support.
2. Support Judgement and Collections Action for Back Child Support or Maintenance:  You can hire an attorney to go to court and get a Support Judgement that shows the amount of back child support or maintenance owed.  With this Judgement in hand you can proceed to collections.  You can garnish wages if they are an employee. (can be between 55% to 75% of their  salary depending on the circumstances).  One factor to consider in garnishing wages is to look to see if there is already a garnishment in place.  They could be being garnished for the support of another child or the IRS may have a garnishment against their salary. You cannot garnish beyond the maximum percentage so if others are in front of you there may not be enough left for your garnishment. If your ex  is self employed you will not be able to garnish their wages.  All these factors need to be considered before moving forward with a garnishment  You can also garnish bank accounts if the person has not already closed them or drained them in anticipation of a garnishment.          
• NEW CASE LAW: Garnishment of funds in an attorney trust account:  In August of 2011, the Colorado Court of Appeals, In In re the Marriage of Rubio found that if a former spouse hired an attorney and had unearned fees in their trust account with that attorney, that it was possible to garnish those funds as part of a collection action.  So, if the person you are trying to collect from hires an attorney and puts thousands of dollars as a retainer into a trust account with that attorney, you have the right to garnish that trust account if you have a support judgement.  
3. Contempt of Court:  If you have a court order that states that the other party is supposed to be paying child support or maintenance and they are not doing so, they are in contempt of court.  A contempt of court action is quasi criminal in nature and the judge has broad power to enforce the order including putting someone in jail for non payment.  The other party does not have a right to counsel like they would in a criminal proceeding.  Often times the Court will give someone one or more chances before they put them in jail.  This means that you have to go back to court a number of times and incur the attorney fees that this requires.  Also, a defense to contempt of court is that they are unable to pay and still meet their reasonable needs. So you need to consider if this defense will succeed.  The money will still be owed but the court may order much smaller payments.  
4. Motion to Enforce:  This action can be brought but it does not have the semi criminal nature of a motion for contempt.  The court still has the ability to impose sanctions on the party that is not paying.

It is important to fully consider the potential benefit and the costs of any action.  Not all attorneys will calculate with you to determine if it is worthwhile to move forward.  Also, many will not inquire about the psychological or parenting issues that should also be considered.  So, please make sure you ask for these assessments before you decide to move forward.

LEGAL ALERT: New Rules and Role for Colorado CFI's

Why have changes been made?

In April of 2011 the Chief Justice of the Supreme Court of Colorado made the first in a series of expected changes to the way the Colorado Court System will utilize the services of Child and Family Investigators (CFI's).

Following a history of numerous complaints to the courts involving issues with CFI’s, the Chief Justice of the Colorado Supreme Court ordered a multidisciplinary committee to investigate, look for trends and make recommendations to address any systemic issues that were identified.  This committee, called The Standing Committee on Family Issues, included judges, attorneys and mental health professionals.

The largest trend identified by the Committee was a drift in the use of CFI’s over time that had resulted in the practice of using CFI’s in a way that was indistinguishable from the use of Parental Responsibilities Evaluations (PRE’s).  The specific legislative intent in creating CFI’s had become lost in practice.

Changes made as of April 2011

CFI’s were originally designed to be narrow fact-finding investigations that were observational and objective in nature whereas PRE’s were designed to be broad based parenting evaluations that included observation as well as psychological analysis and testing.  This original distinction is why the qualifications for CFI’s were so distinct from the qualifications required for PRE’s.

- A CFI can be an attorney, a mental health professional or any qualified individual with and independent perspective acceptable to the Court.  You can see that this leaves a lot of room for a court to appoint a variety of people from many walks of life to be a CFI.

- In contrast, a PRE appointee must be a licensed mental health professional that is competent, by training and experience in the following:

• The effects of divorce and re-marriage on children, adults and families,
• Appropriate parenting techniques,
• Child and adult psychopathology,
• Applicable clinical assessment techniques, and
• Legal and ethical requirements of a PRE.

As of the writing of this article, the Chief Justice has amended Chief Justice Directive 04-08 that sets out the rules for CFI’s as follows:

• There is now a $2,000.00 cap on CFI investigations.  This cap cannot be changed unless there is an order of the Court specifically finding extraordinary circumstances that justify fees and costs that exceed this cap.
• The CFI is no longer allowed to perform psychological testing or drug and alcohol evaluations themselves.
• There is no longer quasi-judicial immunity in the order of appointment of a CFI.
• The CFI no longer has the authority to conduct a meeting with parties when a protection order restrains such contact.

CFI investigations are now to be used for narrow and distinguishable issues and the Court is required to give specific instructions on the narrow issue to be investigated.  An example might be an issue regarding how the child is doing in school under the current parenting plan or how a child might be adapting to a new household.

If there is a custody dispute where the parties cannot agree on who should be the primary parent or how parenting time or decision making should be allocated, or if there is a question as to a parties mental health or ability to parent, then the appropriate action is to request a full PRE with a licensed mental health professional that is qualified under the PRE rules as described above.

Potential future CFI rule changes and remaining work for the Committee in 2011 include:

• Examine the most effective, efficient and economical process for training and continuing education for CFI’s
• Establish protocols that require criminal background checks for all CFI’s and require CFI’s to report violations of the law and professional disciplinary actions or lawsuits filed against them.
• Explore how to establish a statewide list and how to work with local district courts to identify and appoint CFI’s who are qualified and acceptable to the court.
• Improve the process by which a complaint about a CFI is made and considered by the court.

I have created a more detailed comparison chart to compare the use of CFI’s with PRE’s that I will make available on our website at www.matthewslaw.com.  You can also give me a call if you have a specific question at 303-329-3802.

The Valuable Divorce: A blueprint for a post divorce family that works

One in two marriages end in divorce. Once this was just another statistic, no surprise to anyone. Now, however, if you are contemplating a divorce or actually engaged in one, that statistic has become a personal crisis. A divorce creates an upheaval in your life. Regardless of how amicable you think it might be, a divorce is a potential vehicle for creating untold suffering for you and others in your family, especially children. Just ask a few people who have been through a divorce.


Why are so many divorces emotionally draining and nasty? Because, in many cases, there is an established pattern for the way people behave during a divorce. Even when things begin amicably, during the divorce people tend to develop animosity, emotional turmoil and sometimes, unprincipled behavior in gaining leverage over the other party even when it runs counter to their own core values. People usually get emotionally “hooked” sometime during their divorce process and they loose perspective on the long-term results of their very “human” reactions to what is happening.


Divorce is often viewed as the end of something and people behave accordingly. Some see it as an end game with a winner and a looser. Some desperately want to just “get it over with” and move on to a “new” life.


The truth is that when there is a family involved, Divorce is the beginning of something else. The Divorce process itself builds the foundation for the family’s post divorce relationships. A post divorce family relationship is unavoidable if you care about your children and it can last for many, many years.


I speak from both professional experience as a family law attorney and personal experience with my own divorce in the late 1980’s when I say that a nasty divorce, with lots of unresolved feelings and reactive behaviors can lead to years of suffering for the family long after the divorce process is complete. Regardless of weather you feel the results of the divorce action were in your favor or not.


The Possibility of a Valuable Divorce
In our experience, the divorce process does not have to be this way. There is another possibility. It requires the right team of people and a process to support you in achieving what we call a “Valuable Divorce”. If I had had access to this process in the late 1980’s, I could have possibly avoided years of feeling victimized by my ex-husbands behaviors and, more importantly, addressed the source of my daughter’s emotional pain around the way her father handled our parenting agreement.


In other cases, families do find themselves back in court over and over again because the “Legal Agreement” just does not handle the unresolved way in which the divorced parents relate to each other and their children.


The Valuable Divorce Process provides you with the assistance you need to create a Post Divorce Family that works. It is a combination of legal representation and divorce coaching that works together to support you in building a new foundation for your post divorce family relationships. Both sides do not have to participate for it to work, although it is great when it can happen. The Valuable Divorce Process has a beginning, middle and an end. Step by step, the Process tracks with the necessary actions you must take in your Divorce Proceeding while supporting you to make smart long term decisions and create a new set of agreements and behaviors you need to have the family work in a post divorce setting.


Here at Matthews & Matthews we have created a coordinated step by step process to generate a Valuable Divorce and a Post Divorce Family that works.  For more information about the Valuable Divorce process please call Leslie Matthews at 303-329-3802.

Marital vs. Separate Property Update: Marriage of Cardona and Castro No. 09CA1996

In a recent opinion, the Colorado Court of Appeals reviewed two questions relating to the treatment of separate real property in a divorce.  They also made one new determination in the treatment of accrued vacation and sick time as property to be divided.

How the Divorce Court Treats the Re-Invested Proceeds of a Home Purchased Prior to Marriage
In the Case of Marriage of Cardona and Castro, the wife had sold a condominium, during the marriage, that she purchased before the marriage.  She used the proceeds of the sale ($100,000.00) in the purchase of a marital home.  The Trial Court had set aside funds to reimburse her for her initial contribution of separate property towards the purchase of the home.  These funds were not considered part of the division of the marital estate.

The Court of Appeals corrected this error on the part of the Trial Court by pointing out that in Colorado, there is a presumption of a gift to the marriage when separate funds are used to purchase a marital asset; in this case the marital home.  So, if you sell the home you owned prior to the marriage and put the equity into another home during the marriage, that entire amount becomes marital property and is subject to division upon divorce.  The only way to overcome this presumption of a gift to the marriage is to show, through evidence, that your intention was for the separate equity to remain separate property.  For instance, you could have a post-nuptial agreement that states  the financial contribution of separate property to the marital home is intended to remain separate property.  The evidence needs to be stronger than retrospectively stating that this was your intention.

The bottom line is that if you want to keep the proceeds of a sale of separate property separate, you need avoid co-mingling it with marital assets.  Keep the proceeds in a separate account with only your name on them, or, if you put them into a marital asset like another home, execute a post-nuptial agreement stating your intent for those proceeds to remain separate.

When Marital Funds are Used to Pay down the Debt on Separate Property
Let's say that you own a home that you purchased before you were married.  That home is your separate property and it should not be part of the division of marital assets.  However, if that home has increased in value during the marriage, that increase in value is marital and will be considered in the division of marital assets.

In Marriage of Cardona and Castro, the Court of Appeals took this one step further.  Beyond the increase in value, there is also another possible marital component to a separate property home.  Take the situation where there is no increase in the value to the home during a marriage.  Lets say that you are in a recession and the value of the home has stayed stable in the last 5 years.  However, during those same 5 marital years, the owner of the home (married) has been paying down the mortgage so that there is now more equity in the home because the debt has been reduced during the marriage.  In Marriage of Cardona and Castro, the Appellate Court found that the increase in equity in the property based on the use of marital funds to pay down the dept is marital property.  In other words, if the debt has been reduced by 20,000.00 during the marriage, even if the value of the property has not increased, the equity has and that 20,000.00 in increased equity is marital property.

Is Accrued Vacation and Sick time a Marital Asset?
The last separate vs. marital property issue addressed in Marriage of Cardona and Castro involves accrued vacation and sick leave time.  This is an issue of first impression in Colorado.  The question is:  Is accrued leave time a marital asset to be divided on dissolution of a marriage?   In Cardona, the Trial Court  held that the husband's accrued leave time was valued at $23,232.00 and required him to pay $11,615.00 of that value to his wife as part of the division of marital assets.   The Appellate Court disagreed stating that accrued leave time is NOT a marital asset and not divisible on dissolution of marriage.  The rational was that the value is contingent upon using it or not. 

If you have further questions about marital and separate property please click here for more information.

How is Child Support Calculated in Colorado?

The Child Support Formula
Here in Colorado, child support is calculated using a formula.  There are exceptions for high income families, but for the most part the formula is utilized.

There can be exceptions and complexities to the formula but, for the purposes of this blog post, I am going to talk about the general information you need to understand how the formula works.

There are three major factors that go into the formula:

1.  Gross Income
Each parent's gross income is placed into the formula.  If you are a salaried employee this is relatively simple.  Bonuses are included and can be averaged over the past few years.  Overtime is not considered gross income.

If a parent owns a business then it is somewhat more difficult to come up with a number for gross income.  Tax records are usually utilized to come up with an average figure for income.  However, depending on how the business is run, there could be arguments on what the gross income really is.  There is some complexity around stock options and income in kind like company cars and frequent flyer miles.

There are issues that pop up around things like disability income and income from personal injury settlements.  If there are issues in your case, please feel free to give us a call to discuss in more depth.

2.  Overnights with the Child or Children
The second number that is placed into the formula is the number of overnights per year that each parent has with the child.  If you are with your child all day but you return them to the other parent at night, you do not get to put that day into the formula.  Only an overnight counts.  The more overnights you have, the less you will pay in child support and vice-versa. 

In some cases, parents will agree at first to a small amount of overnights and then change their mind when the find out that there is such a dramatic effect on the amount of child support they will have to pay.  It is important to be realistic about overnights.  I have seen scenario's where the Dad says he wants 50/50 parenting time, it is agreed to as part of the parenting plan and child support is calculated based on 50/50, only to find that the Dad does not utilize the 50/50 in practice.  He has received the benefit of the 50/50 parenting time in the calculation of child support but is inconsistent in using his right to parenting time.  The Mother ends up with less child support than is needed given that she is really doing the majority of the parenting time.  Now, this can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is much easier and less expensive to get it right the first time. 

3.  Extraordinary Expenses:
The third basic element to put into the child support formula includes any expenses that the children have on a regular basis that are out of the ordinary.  This could include regular medical expenses or extracurricular activities.  Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula.

Also, if one parent is paying child support already for other children, this will be entered into the formula as well.

Modifying Child Support:
You can go to Court following the initial determination of Child Support to Modify the amount of Child Support if there is more than a 10% difference in the bottom line of the Child Support Calculation due to some sustainable change in circumstances.  For instance, one parent may now make significantly more or less gross income or one parent may be exercising significantly more or less parenting time (overnights) than originally agreed to in the formula. 
This outline provides a very basic understanding of how Child Support is calculated in Colorado.  Each case must be looked at with all the unique circumstances in mind and I would highly advise speaking with a family law attorney to estimate the amount of Child Support that you can expect in your case.

After Divorce: Medical Evaluations for Psycotherapeutic Drug Perscription for Children when there is Joint Decision Making

It is hard enough to make decisions around prescription drug therapy for your child, but when it involves divorced parents it can become an area of conflict in co-parenting.  Talk about escalating an already stressful situation.

Default Joint Decision Making
Here is where the problem begins.  During the divorce process, many parents just default to agreeing to joint decision making.  They are often uninformed of the fact that they can carve out specific areas where decision making does not have to have the agreement of both parents.  Therapy, both talk therapy and drug therapy can be one of these areas.  You can have joint decision making in all areas except this one where language in the divorce decree can include a paragraph that allows either parent to initiate therapy.  You can also give decision making for therapy and/or drug therapy to one parent or the other.  In order to make this decision during the divorce process, clients need to find an attorney that looks out into the future with them and goes over the potential breakdowns associated with joint decision making.  In many cases, this is missed.

The Emergency Exception
As a therapist, you are left, in joint decision making situations with trying to get both parents to agree to the medical evaluation.  If they do not, it cannot be done.  There is one exception.  If it is an emergency, there is a provision in the law to allow for medical or therapeutic treatment without both parents agreeing.  The question for you or for the Psychiatrist is, "Is this an emergency".  If you feel that it is an emergency, you can go forward and if you are brought up on charges with your regulatory agency you would have to defend by showing the emergency nature of the problem.  I would imagine (this in not legal advice) that if the child is suicidal one might reasonably say that the situation is an emergency.

Legal Intervention
Barring an emergency the parent who wants the medical eval has one other legal remedy.  It is possible to go back to Court with a request to modify decision making for this one issue.  This requires filing a motion and setting a hearing.  Although in most cases, this can take months to accomplish, if it is about medical treatment, you may be able to get an emergency hearing date within a short period of time.  During this hearing, the parent that wants the medical evaluation would have to show that withholding that treatment was an endangerment to the child's physical well being or their emotional development.  The Court could then choose to change decision making regarding therapy/medical treatment to allow the one parent to proceed with the evaluation.  It is important, in this situation to be able to show that the medical evaluation is necessary for the child's well being and expert testimony would probably be necessary. 

Examine Joint Decision Making during the Divorce Process
It is unfortunate that co-parenting after divorce can become a problem when trying to do what is in the best interests of the child.  My best advise is to counsel clients when they are in the divorce process to look at the current dynamics between them and their spouse and examine at a deeper level what joint decision making could mean in certain situations.  Better to deal with these issues up front during the divorce process rather than have to return to Court later and cause undue stress and resentments between the people trying to co-parent.