New CFI Guidelines in Colorado

In Colorado, the Court has the authority to appoint a Child and Family Investigator when the Court wants additional assistance from a neutral expert to provide recommendations regarding the best interests of the minor children involved in a case.

The Colorado Supreme Court just revised Chief Justice Directive 04-08, which is the Directive Concerning Court Appoints of Child and Family Investigators.  The amended directive primarily refocuses the CFI investigation on being a cost-effective tool to obtain more information about a family law case.  Among other changes, the Directive has now imposed a presumptive cap of $2,000 for the investigation and report.  The Directive distinguishes between a CFI investigation and a Parental Responsibilities Evaluation (PRE), clarifying that a PRE is expected to be more thorough and costly than a CFI investigation.

It is clear from the comments in the Directive, that the goal is to make the process more cost-effective.  A cap of $2,000, however, is likely to cause major changes in the process and will possibly threaten the quality of the reports.  Considering that CFIs are generally either attorneys or mental health professionals, their hourly rates are almost all more than $100.  A cap of $2,000 will pose significant restraints on the amount of time these professionals can devote to a report.  A typical CFI investigation often involves initial intakes with both parents, interviews with the children (if appropriate), home visits with the children at each parent’s home, telephone calls with third-party references provided by the parties, and review of pleadings and documents provided by the parties.  In addition, the CFI needs some time to create and write recommendations based on that information. 

In addition to cost changes, the new Directive also eliminates CFIs’ authority to conduct psychological testing, which is probably more appropriate as part of a Parental Responsibilities Evaluation anyway.

As a cost-sensitive attorney who is sometimes appalled at the cost of litigation, I am nevertheless deeply concerned that this cap will result in poorly written reports that will provide very little useful information for the court and the parties.  Many of the CFIs I most admire charge more than $2,000 for their initial retainer.  The changes to the Directive may well price some of the better CFIs out of the market. 

Alternatively, it may create an incentive to spend less time on the investigation and report.  Spending less time also means the process may move along faster, but it also runs the risk of decreasing the overall quality of CFI reports.  Most CFIs take their responsibility very seriously and want to prepare a quality report that reflects the reality of the family’s situation as accurately as possible.  I have serious misgivings about their ability to do so in light of the new Directive.

In the days since the Court announced the new Directive, we have seen many CFIs withdraw their names from the appointment lists.  This is largely because, in addition to capping the amount CFIs can charge, the new order appointing CFIs also eliminates their immunity from suit for their work as CFIs.  Proponents of the proposal believe it gives parents some redress in the event that a CFI files a report that results in negative consequences for the parents.  Unfortunately, it may also encourage CFIs to consider the possibility that an unhappy (and sometimes unstable) parent may sue if the CFI does not make recommendations in favor of that parent.  For some CFIs, it also means they cannot afford to remain in this practice because they would have to purchase additional insurance to protect them from suits regarding their work as CFIs.

The combination of these two major changes is already having a significant effect on CFI appointments.  I just hope the fallout does not cripple our ability to appoint CFIs in our cases.

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