16 August 2008

Improving Colorado Divorce Law

Probably no area of Colorado law produces more dissatisfaction with the judicial process than domestic relations law. A large share of active online critics of judges and the courts have had unhappy family law experiences. Litigants in all but the most tame divorces regale friends and family with the agony of the process.

Some of this unhappiness may be the fault of the professionals involved. Some of this may be attributable to the underlying causes of the marriage's demise itself. But, I believe that it is possible to rethink both the substantive law and the judicial process in this area to reduce the harm caused by the divorce process itself to all involved. My identification of the problems and proposed solutions follow.

Problem: Too much discretion

Divorce law gives the judge, sitting in equity, immense discretion.

The aggregate value of property divisions is supposed to be "equitable" rather than equal, and there is essentially no formal guidance on who should get what in particular from the marital assets.

The overriding rule in parental decision making and parenting time rulings is to advance "the best interests of the child," which is only slightly less vacuous than "do the right thing."

Maintenance (i.e. alimony) awards are made with slightly more guidance to judges, but only slightly more. The many factored test provided by statute provides considerable discretion for a judge to determine is maintenance should be awarded or not, and provides little guidance on an appropriate duration or amount of an award.

Also, in the absence of firm guidance, women, who tend to make more economic sacrifices in marriage for the benefit of the family, by foregoing career building to be homemakers and/or care for children, overwhelmingly see their financial fortunes worsen after a divorce, while men generally see their financial fortunes remain little changed or actually improve. Indeed, the desire to give women greater leverage in negotiations over maintenance has been the main factor driving New York State's refusal to adopt "no fault" divorce. Larger maintenance payments would also legitimate the fact that typically, in a family where a mother has spent time as a homemaker, both the mother and her children need financial support from the father. When awards are described only as "child support" father's very frequently complain loudly about and resent the fact that child support money is paid to the mother without any accounting of what is actually used for a "child's expenses" as opposed to the mother's, despite the fact that the law requires no such accounting.

Child support awards are governed by a much more specific formula, which is a product of the income of the parties, the number of children involved, the number of overnights spent with each parent, and certain adjustments for in kind payments or extraordinary expenses. But, the income numbers that go into the formula may be adjusted if a spouse is unemployed or "underemployed," so child support is based not upon what each spouse actually makes, but what each spouse could make if they really tried.

This discretion flows from the fact that historically, divorce was very rare, so there weren't enough cases to establish general rules. Now, they are common place, so judges have to "mass produce" divorces. Moreover, the most important general rules were gender specific and have been thrown out on equal protection grounds, and also on the grounds that they reflected assumptions about how marriages function that are no longer factually accurate.

In contrast, most other kinds of litigation has much more clear standards based upon what has happened in the past, rather than calling upon courts to try to predict the future with vague standards.

Since there is no baseline to measure against, and little in the way of legal standards to govern a judge's discretion, it is little wonder that the personal ideology and alleged biases of judges in domestic relations cases attract so much attention. A domestic relations judge is a super-legislator who makes a new domestic relations law from scratch for each family, rather than an umpire merely applying the rules. Sometimes domestic relations judges act more predictably than the law itself would suggest, but unwritten rules and assumptions are a more powerful force in causing this predictability than the statutes themselves, and parties have no avenue for relief when unwritten rules and assumptions are violated.

Judges aren't the only ones put in a difficult position by the wide discretion afforded judges in domestic relations actions. The fundamental lesson every lawyer learns in law school is that settlement, which is how most cases are resolved, operates in the shadow of what is likely to happen at trial. The less predictable the outcome is at trial, the harder it is for parties and their lawyers to reach consensus on how to settle a case before trial.

Not surprisingly, the domestic relations cases where trial is most predictable -- cases where there are no children and an award of alimony is unlikely because both spouses have established careers, tend to be the least contentious and unhappy, even when the amount of money at stake is very large. In contrast, in almost all other types of litigation, the contentiousness of the parties is strongly related to the amount in controversy.

Solutions

There are several ways that greater certainty could be brought to divorce law, without sacrificing substantive justice.

Maintenance awards could be based upon a formula for determining the amount of the award and its duration that hinges on specific findings of fact about the events that have occurred during the marriage and the current financial situation of the parties. This formula should be more generous that current practice to people entitled to maintenance.

A firm determination of maintenance amounts would also make it easier to merge maintenance awards and property settlements into unequal property distributions that disentangle the parties as soon as possible and also reduce the risk of non-payment, which is a chronic problem.

The use of imputed income in child support awards could be discontinued. It is hard enough to determine what the parties actually earn in many cases, without even beginning to consider what they could earn. Imputing income frequently requires expensive expert testimony. But, the goal of imputation of income, which is to discourage parents from being underemployed, are already served by other parts of the child support formula. Like an income tax, an increase in personal income increases an individual's take home pay more than it increases their child support obligation under the formula, so there is always an economic incentive to earn more money. Also, the opportunity to modify child support upon a change of circumstances under existing law largely eliminates the need for courts to make accurate long term predictions about future earnings.

While it might be counterproductive to specifically require that property divisions be equal, rather than equitable, as this could force appeals over trivial disputes in property division awards, it wouldn't be hard to formally set a limitation on how much of a percentage deviation from equal is permitted.

Finally, some guidance more specific than the "best interests of the child" for parenting time and parental decision making is in order. In practice, several propositions, not always consistent, tend to be applied on a default basis to parenting time determinations.

One is that the status quo tends to be preserved to the extent possible. For example, if prior to the dissolution, mom usually worked late and saw her children mostly on the weekends, she is likely to get lots of weekend parenting time and few midweek overnights. If one or both parents have unusual work schedules, parenting time is frequently tailored to those needs.

Closely related to the status quo principle is that when parents live far apart from each other, a school aged child usually spends summers and many holidays with one parent, and the school year and some shorter holidays with other parent, while, when parents live close together, each parent usually has some parenting time every week. These schedules are also followed by separated couples in "intact" families.

Another is that major decision making tends to be awarded jointly to the parents, unless they are incapable of cooperating, in which case decision making power is usually awarded to the primary caretaker of the child, unless the other parent is clearly more sensible or moderate on the most controversial issues.

Constitutional abolition of the tender years doctrine notwithstanding, primary caretakers of pre-school children, who tend to be mothers, generally receive disproportionate parenting time. Parenting time tends to be allocated fairly evenly between parents of older children in the absence of practical difficulties, or a clear disparity in parenting ability. Parenting times tends to be more flexible and more influenced by the wishes of the child for adolescents.

Formal recognition of these unwritten rules would encourage settlement and reduce resentments aimed at professionals who recommend parenting time in accordance with these principles, while providing greater recourse to parents who genuinely are subjected to the whims of a biased decision maker.

Problem: Finality and Mutual Agreement Are Unrealistic Expectations

As I explain to my clients, in a domestic relations matter involving children, you can end your marriage, but not your relationship with your co-parent. Except in the case of a completely absent or marginally fit father (or much less frequently, a completely absent or marginally fit mother), each parent will have court ordered parenting time and some shared parental decision making duties, at least on minor issues while the child is in each respective parent's care, until adulthood. Since children tend to be born shortly before, or sometime after a couple marries, and most marriages that end in divorce end fairly early in the marriage, this co-parenting relationship often lasts a decade or more.

Children change a lot in a decade. But, it is hardly surprising that couples who can't bear to be married or stay married to each other also have more difficulty than other couples agreeing on parenting issues. Most couples are better at co-parenting alone than they are at a full fledged marital relationship, but that doesn't mean that they are good at it. They typically have enough history with each other to subtly push each other's buttons if they want to do so. Also, most divorced people end up remarrying, which often further complicates co-parenting after the divorce a great deal.

As a result, the finality that applies brutally to other court orders doesn't work in parenting and child support cases. Couples that divorce with young children can expect to see multiple revisions to parenting arrangements until the children grow up, and if parents can't agree those may end up being court ordered changes.

The usual default of joint parental decision making on major issues is also often problematic in practice. Often the status quo that applies in absence of an agreement of the parents is ill defined, and often ex-spouses are not the best at reaching unmediated agreements with each other on parenting issues. If joint decision making is ordered for parents who have trouble agreeing, every life decision poses another potential lawsuit.

In Colorado law, the line between constant relitigation of parenting issues, and complete finality, is drawn using two separate "two year rules" with certain exceptions, one for parental decision making, and one for parenting time, which fail to acknowledge that complications that can arise if intertwined parenting time and parental decision making issues get out of sync with each other under the two year rule. The possibility that litigation can arise from joint decision making in situations in which there is no status quo is barely even acknowledged. Additional elaborate rules apply when a parent makes a major relocation.

Most modern child support orders provide for regular exchanges of information, usually annually or sooner upon a request for modification of child support orders, but usually disclosure rules follow a one size fits all approach that calls for the same disclosures for purposes of child support modification that are required in a full fledged divorce. Yet, many factors considered in a divorce, like the assets and debts of each party, and the ordinary living expenses of each party, are generally irrelevant to child support calculations.

Solutions

The child support information exchange issue is a common issue that impacts almost every divorced couple with minor children, and is fairly easy to address. The court system could simply promulgate a streamlined sworn statement of financial affairs that limits itself to matters pertinent to child support modifications. This simple change could meaningfully reduce litigation costs in many cases.

One alternative to a system that presumes that finality is the rule, and modification of parenting orders is the exception, would be to mimic the approach used by probate courts in guardianship and conservatorship cases, in which periodic reporting and status hearings at which adjustments can be made are the norm. Rather than requiring a showing of an affirmative change of circumstances, all aspects of parental responsibilities would simply be revisited every year or two, unless a stipulated reaffirmation or modification of the plan was sent to the court in advance of a planned status conference.

There should also be, as there is in probate court, provision for summary adjudication of individual decision making deadlocks or court order compliance disputes that cannot be resolved out of court, on a piece meal basis. In contentious cases, courts ought to be granted the power to appoint a non-judicial decision maker without the consent of the parties.

Problems: Courts Are Bad Fact Finders About Parenting and Need For Judicial Assistance Doesn't Track Ability To Pay

Another key reason that domestic relations cases are so problematic for litigants and the court system, is that the courts have a monopoly on granting divorces and resolving disputed parenting issues, but many people can't afford to have lawyers for each party, particularly when there are usually multiple post-decree disputes. But, the court system is not designed well to handle unrepresented parties.

Indigent parties have a right to counsel in criminal cases, and in civil cases, the real stakes in cases where an indigent party is being sued for money damages are often very modest, so a lack of a right to counsel in this fight over money isn't terribly worrisome. If it isn't worth it to the person who faces having to pay the judgment to hire a lawyer to defend a case, maybe the public shouldn't have to do so either.

This analysis makes far less sense when parental responsibilities and restraining orders relevant to personal safety (or freedom if one is defending a request for one) are at stake. Litigating parental responsibilities and restraining orders is just as expensive as litigating a moderate sized personal injury case, a criminal case, or a fairly significant business dispute, and is more expensive than most civil consumer disputes. Taking a parental responsibilities dispute to trial with lawyers can easily cost in excess of $20,000 for each party. And, many people, particularly those who aren't very affluent, are not well qualified to represent themselves in even a bench trial using the rules of evidence and the pre-trial processes associated with civil procedure in a domestic relations case.

There are some funds available for legal aide representation in these cases and there is some pro bono assistance from lawyers available, but the need grossly outstrips the demand. Legal aide is lucky if it has the resources to take on the most contentious cases with children and domestic violence involving the most indigent individuals. As a result, one or both parties in a large percentage of all domestic relations cases involving children are not represented by counsel.

Even with lawyers, a court room is not a particularly good setting for evaluating parenting skills and crafting parental decision making and parenting time orders. Parent child relationships are subtle things, tend to be best evaluated on a holistic basis, and can be hard to communicate in the unnatural environment of a courtroom with adversarial evidence rules designed to handle criminal disputes and personal injury cases tried to juries.

Solutions

Even now, in Colorado, judges lean heavily in their parental responsibilities determinations on the findings of "Child and Family Investigators" (CFIs), who are court appointed experts, generally chosen jointly or if not agreement is reached, by the court, who conduct an inquisitorial investigation of the family by communicating with the parties, watching them in context with the children, and often talking to relatives, neighbors or other people with knowledge of the situation outside a courtroom setting, and the making a report on the facts with a recommendation to the court. While this recommendation is generally not binding, it is generally given great deference in practice because the CFI has the best information and can claim to be a neutral party. Typically, the cost of hiring a CFI is born equally by the parties.

I would suggest that Colorado formally separate the part of the domestic relations process that doesn't directly involve children (i.e. property division and maintenance) from the part that does (i.e. child support and parental responsibilities). The former could be conducted much as it is now, but with more firm guidelines regarding maintenance. The latter, both initially, and in "post-decree" disputes, could be handled by a formally inquisitorial process with CFIs given some basic instructions on child support calculations as the actual judges, and with the parties represented by non-lawyer parenting advocates, who would have a much narrower (and hence less expensive) formal training in their profession which would be limited to parenting and child support calculations, a fairly self-contained part of the law, particularly after it was streamlined to eliminate matters like imputation of income, and complex waiting periods for revisiting different kinds of parenting decisions.

Both the CFIs and the parenting advocates would be provided at state expense in all cases, upon request, on the theory that children's interest should not be given short shrift due to parental indigency. There would also be a right of indigent person to the assistance of a lawyer to both bring and defend a restraining order case, which is a quasi-criminal matter, paralleling public funding of prosecutors and public defenders.

While the parenting professionals in the separate parenting court that I propose, and the legal representation in restraining order cases that I propose would not be free to the state, the cost would not be crushing. Pro se parties indirectly impose a great burden on the court system as it is now, by basically bumbling everything up and requiring a great deal of informal assistance. Allowing a CFI to directly issue parenting orders, and using non-lawyer professionals as advocates in parenting cases would greatly reduce the compensation that must be paid by someone in litigation involving parental responsibilities, while not necessarily sacrificing much expertise because of the specialization involved.

It would also probably be cheaper for the state to have CFIs, parenting advocates, and restraining order lawyers on payroll, just as judges, prosecutors and public defenders are, than it would be to outsource these professionals at private expense as the current system does.

Some people would still hire their own lawyers in parenting cases, particuarly if they were hiring lawyers anyway for the financial side of a divorce. But, in an inquisitorial process, with each party assisted at least by a professionally trained professional, the impact of hiring a lawyer would usually be far less outcome determinative than it is under the current system when a party with a lawyer is pitted against a party representing him or herself, or when two unrepresented people of very unequal bureacratic abilities try to move a case along through the court process.

Also, it would be helpful to separate all rules of civil proceedure that apply in domestic relations cases into a separate set of rules from the ordinary rules of civil procedure within which they are now lodged, because this would help non-lawyer professionals and unrepresented individuals to better understand them.

Summary

Divorce will always be unpleasant. No amount of rewriting the rules can change that. But, by reducing discretion in the substantive law, radically overhauling the process in terms of finality and the adversarial hearing oriented part of the process in the parenting part of cases, and using publicly funded non-lawyer professionals to handling parenting issues in most cases, the system could be less painful for all involved, and also cost less to the parties and the goverment alike, while producing results at least as just as those produced under the current system, and probably more so.

12 comments:

Rosalind said...

Thank you for this excellent perspective and advice. I totally support creating the most positive outcomes for families facing divorce.

My own experience more than a decade ago led to my writing a guidebook for parents on how to create a storybook with family photos and history as a successful way to have the tough break-the-
news conversation.

I’m recognized as The Voice of Child-Centered Divorce and my new book is How Do I Tell the Kids about the Divorce? A Create-
a-Storybook™ Guide to Preparing Your Children -- With Love! What makes the book unique is that I don’t just tell parents what to say. I provide customizable templates to say it for them!

Therapists, attorneys, mediators, educators and other professionals from around the U.S. and beyond have endorsed the book, attesting to the value of my fill-in-the-
blanks, age-appropriate templates. Six therapists contribute their expertise to the book, as well.

My goal is for divorcing couples to stop, talk and create a plan before having that crucial "divorce" talk with their children. I hope, for the sake of their kids, they will decide to move ahead in creating a child-centered divorce.

For free articles, ezine and other valuable resources on this topic, I invited you to visit www.childcentereddivorce.com.

Best wishes,
Rosalind Sedacca, CCT

A Father in Colorado said...

I enjoyed reading your article and admit it had some interesting thoughts about the process of divorce and child custody. Your commentary, however, was woefully absent of highly pertinent information on key factors and influences that substantially affect the entire process and environment in which these take place.

While you introduced the idea of "too much discretion" on the part of the Courts, you failed to suggest any bias from said Court, from the black-robed demons who preside over them, from the clerks who serve them, or from any of the many and varied contributors who make recommendations and/or provide often false testimony to them.

Yes, unfortunately, there are many judges who regularly make up their own rules but, more than that, they don't follow statutory guidelines, allow their "prejudices" and pre-conceived notions to influence their decisions, often blatantly disregarding established law, procedures, and societal norms. Sadly, a number of such judicial officers actually claim to be above the law they are supposed to uphold.

Many of the aforementioned contributors, who act under guidance from the Court itself and usually as agents of the Courts (thereby receiving immunity under the Court's umbrella), are often either unqualified outright to serve in such capacities, due to various reasons, or more often they illustrate such severe bias, unethical behavior, and the like, that they disqualify themselves from serving. The examples are too plentiful to deny, a sample of which may be viewed on the website http://www.knowyourcourts.com.

And, then there is the industry in which all these individuals operate. There are unscrupulous persons and organizations who self-servingly promote such causes that only benefit their own coffers and promote their own interests, among whom are attorneys, CFIs, Special Advocates, Parenting Coordinators, Psychological Evaluators, Counselors, Therapists, and several industry-specific committees, lobbying groups and other "we're smarter than you" organizations.

If the intent of your writing is to say that changes, even major reforms, are needed, then on this you are correct. But more than that is needed to positively affect the processes through which children are dragged from loving parents and tortured for years because of "inadequacies" in the system. Your words lack the necessary ring to recognize what really is taking place behind the granite walls. I suggest you focus on the lives destroyed at the hands of those who serve the system and learn from where their pain comes. Then, perhaps, you'll understand what changes are required.

Sean said...

Andy: The prev. post was not from me. I asked several of my Web site visitors to read your article and post comments. I'm surprised more haven't done so, already.

Although you've written a rather lengthy essay, this topic is far too broad to address as a single post. Consequently, there is lot of salient information omitted and most or all of your assertions are conclusory.

I've tried to address individual subtopics on my site and to support my contentions with specific examples.

Some highlights that I think you glossed over include, in my opinion:

- Law professors often regard "family law" as the bastard step-child of the practice of law;
- Most attorneys find "family law" repugnant;
- Marital dissolution proceedings have transmogrified over the years into a booming divorce industry teaming with unethical predators, who are adjuncts of the court and who are exempt from any form of plenary review or regulatory oversight;
- family law proceedings (including probate, juvenile & domestic relations) often do not acknowledge or apply basic procedural due process principles, including the right to adequate notice, the opportunity to be heard at a meaningful time and in a meaningful manner; the right to cross-examination; the right to a jury for certain fact situations that have preclusive effects; First Amendment speech protections, inter alia. See, generally Russ Bleemer, Judges told to ignore rights in abuse TROs, 140 N.J.L.Rev. 281, 294-95 (1995); David Heleniak, The New Star Chamber, 57 Rutgers L.Rev. 3 (Spring 2005) at 1009; Ronald Standler, Federal Court Jurisdiction in Family Law Cases (May 2004).

Also, as you know, the wide discretion results in a deferential standard of review on many issues raised on appeal.

I've written a short treatise on that I call Colorado's Divorce Industry: An Overview.

Anonymous said...

As a co-parent unfortunately sucked into the hellhole of the Arapahell family court system as dubbed by our District Attorney in the Denver Post, I have unique insight having been in the system for almost seven years now.

While the only thing I really fully agree with in this article is that CFIs should be court appointed and not have to be paid for by the parents. Here are some things that are factual and non-disputed if you look at the actual players in the court system and how it actually works.

1. CFIs -- Basically bottom of the barrel psychologists/ambulance chasers run the family court system. While there may be some instances where the judges actually deviate from the CFI "recommendations" that's a laugh... "orders"... the judges leave the decision making to the CFIs. CFI's rule the family court system, judges don't in any way, as they don't want to be there in the first place.

2. CFIs will have you fill out "collateral contacts" for them to contact, but if they do contact them, which is rare they don't take their opinions into consideration, being as one of the CFI's on our case told me, "They are your family and friends, so what they say doesn't matter to me." So, in short the CFI's "professional opinion" that's a laugh... is the only thing that matters. You can have all the references in the world who say you are an amazing person, they fully and completely ignore their opinions.

3. CFI's will hold your parenting time hostage for money. This has happened to me and I see that it has happened to many others in CO having read a poster who put down, "www.knowyourcourts.com" where there are many indisputable facts that back up what I am saying here. The CFI I had held my parenting time for ransom.

4. These highly paid CFI professionals all use boiler plate parenting plans that don't take into consideration either of the parents wishes. In most cases, if the CFI would just listen to both parents request for parenting time, an equitable arrangement that is fair would alleviate all ongoing conflict and lessen the court's load. But, no the CFI's wish to try to limit one parents time, usually the father, and create an even higher conflict divorce. I mean really, it's like the bully in the playground who keeps your hat from you, he more he does it the angrier you get. As we all figured out by the time we were 4 years old SHARING diminishes conflict! In a majority of cases, the father is completely competent and can have 50 percent of the time without any problems. Studies have shown that children who have equal contact with both parents do better in all areas of their lives... I guess the CO CFI's missed this lesson in CFI school! LOL I haven't run into one of them who thinks that equal custody is a good idea for children, this attitude and false belief is the main reason for all the messed up kids we have and all the cases filling up the CO family court system. If the parents get what they want in terms of what they think is fair for parenting time and if they agree on decision making allocations then it stands to reason that they will start getting along! I don't think I am a complete moron because I do actually have a degree and I work a highly technical industry. I don't know... since I have been in the system, I think my opinion should mean the most having actually dealt with these people in the CO Family court system.

Honestly, there should be a law that abolishes the existing family court setup which is a great business model for making tons of money for lawyers and psychologists and all parents should be required to attend mediation first and be told to figure out a parenting plan on their own with the help of a mediator when there is no indication of abuse etc. All it takes right now is some fabricated accusation by some deranged parent to get the whole family deep in debt and eternally stuck in the family court system where they have CFI investigation after investigation after investigation where nothing is found to be true, because the CFI's by the way don't have to actually prove anything with factual evidence. Damn, did I mention they are also protected from any wrongdoing for any reason as well? Pretty good business model, don't you think! I am actually thinking of going back to school to get my psychology degree to join the other CFI millionaires in CO!

Anyone who has not been in the system or hasn't had any contact with any of the players shouldn't be allowed to have any type of opinion about any area of the CO family court system. It's a system designed to make money, with no regard for families and especially children.

Anonymous said...

I have read your blog and fully support the changes you have suggested. But who are "you' and 'I' I HAVE lobbied for reforms in the family court system. I HAVE met with Theresa Spahn, former Governor Owens, Chief Judge of El Paso County, Legislators, Lawmakers, the Judiciary Committee in Denver, begging for reforms. I have testified in support of three different bills with regard to Family Court Reform. I have testified against the retention of certain family judges in two separate retention hearings, filed two appeals (lost one, won one) and do you know what it got me? My kids were taken away and I did not see them for several years. No contact. My kids were 9,6, and 3 at the time. All of this was done under the guise of judicial discretion. That was 7 years ago. I started seeing my children again 2 years ago, supervised. It remains supervised to this day. I know....I hear your doubt. I hear your questions. I hear you when you say 'that parent must have done something very bad...probably has substance abuse issues, or mental incapacities, or has abused the children in some fashion. MUST have done something. Well, I did none of those things. My ex-spouse hired a 'parenting time evaluator,'by the name of Mark Wilmot, paid him about $30k (a very small amount when you are a millionaire and have great influence with the new judge), received a favorable report (who would have guessed?)from Mr. Wilmot, which recommended no contact with my children for a period of two years...drum roll please...because I bought my child a cell phone, I kissed my children on the lips, I had lunch at school with my children which according to Mr. Wilmot and Judge Rebecca Bromley, equates to 'enmeshment' which means you love your kids too much. Read the case. 98 DR 2837. Oh, and by the way...I am the Mother. You can read some of this case on www.knowyourcourts.com. The matters of child custody do not belong in a revenue eating machine, also known as a court room. Many of the family court judges in Colorado make their decisions based on 'feelings', and social connections rather than law and logic, and almost NEVER based on the best interest of the child. And who cares, the judges and all of their court pawns (cfi's) have absolute immunity. No accountability. And during my journey through hell the past 7 years, the most validation I have received was from a legislator who said, "This has been happening to Father's for decades." Oh, OK well then. That makes it allright.

Anonymous said...

On behalf of three children who have been legally abducted to the tune of the legal defamation of their loving non-abusive father (me), I would like to add that there is evidently no mechanism to address a bold-faced liar's allegations in this system. Not even when the liar is opposing counsel, a CFI, or even a judge. Therefore, all one must do is say what one must to get what they want at everyone's expense, including their own (sadly), and there is nothing to stop them. It seems as if the foreseeable nature of conflicting divorcing parties' difficulties in this regard would've by this 21st century resulted in mandated effective processes long ago to protect all parties to divorce, especially children and elderly extended family who have no viable advocacy in these matters presently. Nobody is perfect, and we can all find examples of mistakes people make daily; yet, that Judge Glowinsky, as one example, can't manage to write court orders keeping "petitioner" and "respondent" straight, seems far worse given the high stakes involved in family court outcomes. Maybe its simply a sign of the lack of concern the courts have for people caught in cases before them. I have forgiven all parties to the injustices done to me, yet my dear children are still completely sequestered from a loving parent and my entire side of the family (the side that was in fact involved with them for years in meaningful ways while the other side was not). How this happens repeatedly to children and parents in our society is disturbing at best, or perhaps an indication that our society is not so civilized after all.

Will Hayes
will.cellist@gmail.com

Dale Kim Thorup said...

We have crossed paths before and while I found your treatise on family law to be thoughtful, you still remain naive regarding the real problems within our family law courts today. If I may paraphrase a more knowledgable constituent, "it's the other 98% that ruin it for the 2% of honest lawyers, magistrates, and judges in Colorado and across the Country.

Until there is meaningful oversight of the legal profession by the OARC and Commission on Judicial Discipline, who remain illusory disgraces to their profession, corruption by court officials will continue as they are granted impunity. Similarly, until there is meaningful oversight of CFI's and therapists by DORA, who's jurisdiction is often pre-empted by courts, corruption by this industry will also continue.

You can read about the corruption in my case which is detailed in a legal affidavit, filed in Denver Federal Court in February of 2006, at:

http://www.knowyourcourts.com/CARC/correspondence/2006-02-21_Affidavit-of-Thorup.pdf

Andrew Oh-Willeke said...

The following comment was received via e-mail yesterday (identifying information removed):

"Andrew,

Thanks for the thoughtful article proposing reforms to reduce the cost to families, and noting the excesive discretion of judges to make their own rules.

I especially like the part about parenting time argued by non-lawyers and CFI fees paid by the state.

My horrific case may have played a part in the new language of SB54 (performance commissions now have to look at family court specific judicial performance) and in CJD 04-08 (psych testing is no longer allowed by CFI's except under special order).

I have communicated a lot with a handful of legislators and I would like to see some of your cost-reducing ideas make it into a bill.

Here is one reform I have been proposing:

1. LANGUAGE ADDITION TO CRCP 97: "Recusal motions relating to family court matters will be forwarded to the Chief Judge in the district. The Chief Judge Management Team will review the motion and affidavit and make a recommendation on the recusal issue. The judge in question will receive a copy of the Management Team recommendation, and the Chief Judge may rule on the recusal motion with consideration given to the Management Team recommendation."

RATIONALE: Under the present system you have to ask a judge to recuse. Recusal especially for family cases is something that needs to be decided by a neutral third party or committee. Although the Chief Judge Management Teams were created in Chief Justice Directive (CJD) 95-01 in part to satisfy SCFI #26; "Implement a system to remove ill suited or burned out judicial officers from family case assignments.", as near as I can tell the management teams haven't been given any specific way to accomplish #26. Having family court recusal motions go directly to them would effectively synergize the intent of the management teams and #26."

Andrew Oh-Willeke said...

The following comment was inadvertently left at the wrong post on August 16, 2008:

"Annette Story said...
Andrew, I tried to respond to your comments on CFI's. I used the blog post at the bottom of that page but don't know where it went! I hope you can find it, as it will educate you an the complete scam they are! I wrote about Bill Strong, please let me know that you saw it, it is too lengthly to repeat it all here.
You need to visit knowyourcourts.com and read, read, read!!!! These CFI's put children's lives in danger, my son, and others have paid the ultimate price! You and judges, need to do your jobs and interview the witnesses, instead of relying on these money grubbers to do your work for you! Annette

2:49 PM"

Andrew Oh-Willeke said...

Extended feedback and more recommendations are found at my follow up post.

Anonymous said...

Andrew,

I read your two posts and was surprised when you mentioned processes were needed that you did not elaborate on the lack of checks and balances, or a process for continual improvment of the CFI or other family court helper roles.

It is unfortunate that almost every couple of years we legislate yet another set of family court helper roles with no standards of practice, no set of checks and balances or oversight of those serving in these roles(other than the court that appoints them) and no process for measuring effectiveness or improving the outcomes for children and families forced to use individuals serving in these roles.

Robert LaCrosse and Robert Smith were quite excited about the latest legislated role--parenting coordinator--when I heard them present. Rober L . shared that they thought of this role when the managed care money ran out for mental health professionals. He also happily shared that you could serve as a parent coordinator, answer only to the judge that appointed you and would not be bound by any standards of practice and would not have to pay malpractice insurance when serving in this role. And you could charge the same rate of pay. Such a deal.

It is clear when you look at the AFCC roster for Colorado that individuals are still charging the same rate of pay as those professionals who are bound by standards of practice. It appears to be about the money and not at all about the best interest of children. I believe this roster is available on the Know Your Courts web site. Since consumer protection is lacking for any of these roles I would caution parents against using these family court helpers (Parenting Coordinators or CFI's). Try to find a better right answer. Don't let your children be victimized or your family resources be depleted by groups of individuals who are virtually accountable to no one.

Perhaps these types of family court helper roles are a contributing factor to the spike in child fatalities in Colorado.

Reports say that Rick Walters was legally drunk when he killed his ex-wife and all but one of his children before killing himself. A CFI(called SA at the time) was invovled in this case.

The wife's sister reported that there were indications that this was a volatile situation but they were ignored.

Please protect your children and family from being victimized in Colorado Courts.

Getting the word out said...

Well William J. Strong, Licensed Clinical Social Worker (LCSW) & Child/Family Investigator (CFI) raped a woman on February 6, 2011, right after the superbowl and got away with it because he has connections within the Judicial System (thru his work as a CFI). He knows Judges, DAs, Attorneys, people within Police Depts, so it was covered up! He was never arrested, the detective treated the victim like *THE* criminal and didn't investigate Mr. Strong. The DA - Maggie Conboy did a favor for Mr. Strong by not filing charges. When the victim tried to complain to Ms. Conboy's supervisors (THE DA and some other man), they said that they wouldn't meet with her because she "abused" Ms. Conboy by saying mean things to her (ummmm....the victim was raped!) Mr. Strong is in private practice for therapy and he gives "dating" advice to single women and marriage counseling to people and even scarier - he "advises" on what's best for children as he's a CFI. I'm sure that the rape that he committed in February is not his first and won't be his last (he's got friends within DPD and the DA's offices). Sick bastard!!!

His wife, Gay Linn Strong (Sam), works at Starbucks part-time just to get health insurance for the family. Does she know that he's a rapist?