Chapter 18 - § 18.1 • ADVOCATES FOR THE CHILDREN

• Jurisdiction: Colorado

§ 18.1 • ADVOCATES FOR THE CHILDREN

§ 18.1.1—Colorado's Unique Approach to the Guardian ad Litem Role

Effective July 1, 1997, the Colorado legislature radically amended C.R.S. § 14-10-116.5, which formerly provided authority for the appointment of an attorney as a guardian ad litem (GAL) to represent the best interests of a child — not the child — in a custody/domestic relations case. The change divided the former GAL function into two distinct roles:

1) The child's legal representative (CLR), who must be an attorney and who represents the child's best interests as one of the full attorneys in the case; and
2) The special advocate (SA), who may be an attorney but does not have to be, and who performs the rest of the former GAL's investigative and testifying functions. In practice, most judicial districts have used either family law attorneys or mental health professionals as SAs, though some CASA groups have been providing SA services when their dependency and neglect caseload allows.

Further, the legislature eliminated the concepts of child "custody" (1997) and "visitation" (1993) from the law of domestic relations (Title 14), replacing them with the less harshly property-oriented and more accurate "allocation of parental responsibilities" (C.R.S. § 14-10-103(4)¹ ) and "parenting time" (C.R.S. § 14-10-103(3)).

Another significant change came in 2005, when the legislature changed both the appellation and the statute concerning special advocates, and also changed the statutory reference for the CLR. As of June 2005, the former special advocate is now known as the child and family investigator (CFI), and the statutory authority is now found in C.R.S. § 14-10-116.5. The child's legal representative (CLR) retains that title, and its statutory authority is now found in C.R.S. § 14-10-116.

This section uses the term "guardian ad litem" interchangeably with the term "child's legal representative," but it should be understood that a child and family investigator does not represent anyone, and is considered the court's investigator. One of the primary reasons for the bifurcation of the role is to address the question of whether an attorney representing the child's best interests can testify in domestic relations cases — he or she cannot, under the 1997 and 2005 versions of the statute. The GAL/CLR must be a licensed attorney in all cases except those under the Probate Code.

Practice Pointer
GALs exist in Title 19 (children's law) cases, and CLRs exist in Title 14 (domestic relations) cases. Some courts use CFIs in any Title 14 case, as well as in any appropriate Title 19 or, on occasion, a Title 15 (probate) case in which either parenting time or allocation of parental responsibilities is at issue. A CLR may be appointed in the same case as a CFI, but they cannot be the same person.

This section examines the role of the GAL/CLR/CFI in custody/parental responsibilities and visitation/parenting time cases in Colorado. It covers the statutory and case law references; the role of the GAL/CLR/CFI in high-conflict cases; analysis of some of the problems presented by the more difficult cases; suggestions for attorneys who work with GAL/CLR/CFIs; and practical suggestions for attorneys who find themselves in the role of GAL/CLR/CFI.

Section 18.1 deals primarily with high-conflict parental responsibilities and parenting time cases, both pre- and post-decree. These cases exist in the domestic relations, juvenile, paternity, and probate fields. However, the role of the GAL/CLR/CFI in these cases is essentially the same. There are some variations in the statutory schemes and criteria involved in the decision-making, but the general legal guideline is to act in the best interests of the child or impaired adult. Therefore, the topics covered in the chapter are generally applicable to the GAL/CLR/CFI functioning in any of these types of cases.

§ 18.1.2—The GAL, CLR, and CFI in Colorado

Historical Use of the GAL/CLR/CFI, and Development of the CLR and CFI

The use of a GAL/CLR/CFI to represent/investigate the best interests of the child in Colorado parental responsibilities or parenting time cases is of fairly recent onset. The first statutory reference to the appointment of a GAL occurred in 1963. The earliest case reference to a GAL in a divorce case is found in the 1979 case of In re Marriage of Conradson, 604 P.2d 701 (Colo. App. 1979). The earliest reference to a GAL in juvenile case law is found in the 1971 case of In re J.T.B., 493 P.2d 691 (Colo. App. 1971). Since these early references, the use of the GAL/CLR/CFI in parental responsibilities cases has expanded, especially since the 1990s for theGAL/CLR.

The use of the CFI has increased immensely since shortly after C.R.S. § 14-10-116 (changed to C.R.S. § 14-10-116.5 in 2005) was initially changed in 1997, because the courts began realizing the value of such a concentrated, brief investigation in high-conflict cases. Some experimentation occurred, since the statute is fairly vague, and courts began directing CFIs to mediate conflicts and perform what was then the non-statutory role of parenting coordinator.² A 30-year-old, non-profit multidisciplinary organization in Denver formulated special advocate guidelines in January 2001, and a Chief Justice-appointed standing committee, among other duties, developed standards of practice and a model appointment order to bring some consistency to the role. See Smith, Littman & Montgomery, "Child and Family Investigator Standards in Colorado: Part I," 35 Colo. Law. 61 (July 2006), and "Part II," 35 Colo. Law. 75 (Aug. 2006). The standards and model order were approved by the chief justice in Chief Justice Directive (CJD) 04-08, available on the Colorado Judicial Branch website, www.courts.state.co.us and in Exhibit 18F to this chapter. The CJD changes the name and statutory reference, and it applies to all CFIs in every judicial district in the state.

Recent Developments in GAL/CLR/CFI Practice

A major development in the area of GAL/CLR/CFI practice was the establishment of GAL Standards of Practice by the Colorado Bar Association in 1993, as well as the adoption and revisions of CJD 97-02, which was replaced by CJDs 04-04, 04-05, 04-06 (see Exhibit 18E), and 04-08 (see Exhibit 18F). The GAL Standards and the Chief Justice Directives set forth certain minimum performance and practice standards for GAL/CLR/CFIs.

Standards of Practice for Guardians Ad Litem

In 1993, the Colorado Bar Association (CBA) adopted Standards of Practice for GALs that were the product of two years' work by a combined committee of GAL practitioners in the domestic, juvenile, and probate fields. These Standards were intended to establish the minimum performance level of a GAL in any case. The Standards were adopted by the CBA Family Law Section, Juvenile Law Forum, Trust and Estate Section, and Board of Governors. The Standards were presented to the Colorado Supreme Court for its consideration, but the court declined to formally adopt them. Several jurisdictions chose to require compliance with the GAL Standards as a condition of appointment as a GAL.

CJD 97-02, Replaced by CJDs 04-04, 04-05, 04-06, and 04-08

In July 1997, then-Chief Justice Anthony Vollack addressed the concerns about the conduct of GALs and other representatives of children by issuing CJD 97-02, which was revised the next year to address a number of issues involving minimum performance standards and required continuing education credits. As a result of public hearings conducted by the Supreme Court-appointed Commission on Families in the Courts in 2002 and 2003, the Standing Committee on Family Issues took a close look at attorneys working with children, and CFIs in particular; four CJDs were issued between April and September 2004 that took the place of CJD 97-02. During the summer of 2010, the Standing Committee of Family Issues took public comments on issues involving the appointment, pricing policies, and approved practices of CFIs and parenting coordinators, with the intention that the CFI Standards in CJD 04-08 and the Parenting Coordinator Standards in CJD 08-01 might be refined to address perceived abuses in both roles.

In December 2012, CJD 04-08 was modified. It created a Statewide Eligibility Roster for CFIs, detailed complaint procedures against a CFI, and created the sanctions that may be applied to a CFI. It also added language stating that if the CFI has or had a financial, familial, or social relationship with the parents, children, counsel, or other parties, the CFI must ask the court to terminate the appointment. This change was also added in C.R.S. § 14-10-116.5(2.5). If the court finds that such a relationship exists, the CFI cannot serve in the case. See Exhibit 18F.

The latest revisions to CJD 04-08 were effective January 1, 2016. This latest modification of the CFI procedure included:

1) Raising the presumed financial cap to $2,750 for the investigation and report, unless the court specifically finds there are extraordinary circumstances to justify fees and costs that exceed that cap amount;
2) Transferring oversight from the Office of the Child's Representative to the Supreme Court Administrator's Office (SCAO);
3) Permitting a qualified CFI to conduct drug and alcohol evaluations when specifically ordered by the court;
4) Making significant changes to the Complaints section, including that complaints must be filed within one year following termination of the CFI appointment;
5) Removing the provision in Standard 10 allowing the CFI to "take whatever additional steps are believed necessary to protect the child/ren";
6) Defining that reports are due 35 days prior to the hearing unless the court lists another due date; and
7) Requiring CFIs to maintain files for seven years following termination of appointment.

CJD 04-04 discusses the appointment of state-funded counsel in criminal and contempt cases. CJD 04-05 outlines appointment and payment procedures for...