The Role of the Expert Witness in a Custody Case
In Colorado, “custody” cases, also called “parental responsibility” or “parenting time” cases, sometimes require the use of an expert parenting evaluator. These “experts” are usually psychologists or therapists who have additional training and have been approved by the Colorado courts to provide recommendations regarding parenting plans and other “custody” matters.
Parenting experts are most often used in higher conflict child custody cases such as: when one parent is attempting to show that the other parent is unfit or less fit than they or when one parent wishes to move away, taking the children away from the other parent.
What to Expect From an “Expert Evaluator” During Your Child Custody Case
The expert will evaluate you and the other parent through personal interviews and questionnaires, evaluate significant others and their interaction with your children, interview your children when appropriate, observe your living situation with a home visit paying particular attention to how you interact with your children and how well you encourage stability, a loving and calm environment, appropriate discipline and the encouraging of love and affection for the other parent—in spite of your own anger against the other parent.
Having a Child and Family Investigator (“CFI”) or a Parental Responsibility Evaluator (“PRE”) appointed by the Court allows the expert to make recommendations to the Court regarding the parenting plan.
The CFI/PRE recommendations can weigh heavily in the Court’s decision. The Court need not accept the expert’s recommendation, though. The recommendation is just one more piece of evidence the Court must consider. Often the weight of an expert’s recommendation comes down to who the expert is—how well they are known and respected by the Court—and the practices of the judge.
Some judges afford great weight to the opinion and recommendation of a CFI or PRE. Some judges do not afford much weight at all to the recommendation and this may be a factor of the judge’s personality and the reputation of the CFI/PRE or sometimes the facts of the case.
It is important to explore with your attorney whether your case would benefit from a parenting expert; and, how your judge reacts to certain CFI/PRE recommendations, and which CFI or PRE is appropriate for your specific case. Remember, the choice of a parenting expert for your case is an extremely important decision that you should make with an experienced family law attorney because the choice to use a parenting expert has significant consequences, risks and benefits.
Child Custody Evaluation By a Child and Family Investigator (CFI) – The Good, the Bad and the Ugly:
Using a Child and Family Investigator (CFI) or a Parental Responsibility Evaluator (PRE) in your custody case is a decision you should make with the guidance of your attorney. The CFI/PRE, allows in depth recommendations to be made to the Court regarding the parenting plan.
The most positive aspect of having a CFI/PRE involved in your case is that if they are “on your side”—meaning they have made a recommendation favorable to your position–this can be persuasive evidence to the Court to rule in your favor.
The CFI/PRE can also be of assistance as parenting disputes and other issues arise during the course of the litigation. Some CFIs and PREs will interact with the parents and their attorneys to help settle matters and diffuse disputes when necessary. A significant detriment to having a CFI/PRE involved in your case is that it is an extra expense (often $3500-$5000 additional cost at a minimum).
Additionally, you will have someone very involved in your life history and behaviors and judge you for what you have done and predict what you will probably do regarding your parenting skills and judgment. Also, if the recommendation is not in your favor, you now have a hurdle to overcome.
Interacting With The Child and Family Investigator / Parental Responsibility Evaluator During Your Child Custody Case
Your interaction with a CFI or PRE can be a delicate dance. Most likely, you want to present your most positive parenting skills and practices while also explaining why you—and not the other parent—is the better parent. Therefore, many parents go into the CFI/PRE evaluation ready to disparage the other parent—thinking this is the best way to show the expert who is the better parent.
However, a major factor a CFI/PRE evaluates is how well you encourage love and affection for the other parent—in spite of your own anger or disappointment in your failed relationship. The CFI/PRE knows that children want to love both parents and do not want to be caught in the middle of the conflict.
The CFI/PRE cares about and is an advocate for your children, not for you. Therefore, it is important that you and your attorney discuss in depth how any negative information regarding the other parent will come to the attention of the CFI/PRE. Sometimes the divorce attorney communicates this negative information to the CFI/PRE, sometimes you must divulge the information, and sometimes it is best to let it happen without your involvement.
Communicating that you are “right” and the other parent is “wrong” is a huge mistake and often ends up conveying the opposite message. The decision on how to proceed and to convey your message to the PRE/CFI is best made with the experience and understanding and guidance of your attorney. You will have one chance to make the right impression. If an unfavorable impression results, you will have an uneven playing field and will likely end up with a mixed recommendation, at best.
Creating a Strategy: Using a Child and Family Investigator (“CFI”) or a Parental Responsibility Evaluator (“PRE”) in your child custody case is a decision you should make with the guidance of your divorce attorney. The CFI/PRE, allows in depth recommendations to be made to the Court regarding the parenting plan.
The most important decision you and your attorney make regarding use of a CFI or PRE, however, will be the “strategy” that you develop. Anyone can react to the tactics, behaviors, manipulations and actions of their opponent during litigation. What you want to do is to get control of yourself and the litigation by getting control of the issues. With a CFI or PRE, gaining control over the issues to be evaluated, will only serve to allow you to present your position and parenting ability in the best light.
Often when a potential client contacts our office mid-way through a divorce/custody case that they are trying to handle without an attorney, they have found themselves on the “reacting” side repeatedly. By reacting, they appear aggressive and vengeful and often act in a way that is not typical of the behavior and values. They often feel powerless and frightened. Their biggest mistake was that they did not create a “strategy”, so they do not know what to do to get to the result they wish.
Your attorney will help you create a strategy—a plan—to get you to your goals. The strategy must be based on your goals—what is most important, second most important, etc. Often a Client will state that the parenting plan is the most important aspect of their case and they will describe the parenting plan they wish to have ordered by the Court.
The strategy you create with your attorney should always be centered on your goals so that every move you make, will get you closer to your goal. You will then be able to move forward setting the issues and employing procedures that assist you in obtaining your goals. The strategy may flex and bend at times in reaction to the opposing party’s tactics, but generally, a good strategy stays firm so that your message to the Court is one of consistency.
When a CFI/PRE is appointed during a case the use of this expert witness should have been a major consideration in the development of your strategy. The strategy you develop with your attorney should include “how” to respond to the CFI/PRE. This is extremely important as one of the problems for someone going through the stress and worries of a custody case is that their message—to the Court and to the CFI/PRE—is lost in delivery.
The parent knows what they want to say or do but it comes out wrong; or, the CFI/PRE hears it wrong and makes a negative assumption. You don’t want to go through the trouble and expense of hiring an expert witness only to compound your problems and worries as you fumble through what could have been a positive tactic and result. Your attorney cannot tell you what to say to the CFI/PRE specifically—but your attorney should tell you “how” to convey your information to the CFI/PRE.
“How” you convey information will be based on the truth of what you are really trying to convey. You must then add to that truth the appropriate emotion that allows you to fully explain not only the facts but the surrounding circumstances, reactions, influences and consequences that are conveyed through the emotion. The difficulty is, of course, it just isn’t always so easy to make your position known the way you want it to be heard. This is where your attorney can help you.
Once you and your family law attorney establish “how” you wish to be perceived and “how” you will communicate, then you will understand “how” your message will be filtered through the actual words and emotions you choose. With the help of your attorney, an otherwise accusatory or disparaging statement can come across as “concerned” –because that is what you are really trying to say.