COCODE

14-10-127. Evaluation and reports - training and qualifications of evaluators - disclosure.

Statute text

(1) (a) (I) (A) In all proceedings concerning the allocation of parental responsibilities with respect to a child, the court may, upon motion of either party or upon its own motion, order any county or district department of human or social services or a licensed mental health professional qualified pursuant to subsection (4) of this section and referred to in this section as an "evaluator" to perform an evaluation and file a written report concerning the disputed issues relating to the allocation of parental responsibilities for the child, unless the motion by either party is made for the purpose of delaying the proceedings. The purpose of the evaluation and report is to assist in determining the best interests of the child, with the child's safety always paramount. The evaluation and subsequent report must focus on the best interests of the child and the factors set forth in sections 14-10-124 and 14-10-129 in any post-decree or relocation case. In addition, the evaluator shall assess a party's parenting attributes as those attributes relate to the best interests of the child, and consider any psychological needs of the child when making recommendations concerning decision-making and parenting time.

(B) Any court or any personnel of a county or district department of human or social services appointed by the court to do an evaluation pursuant to this section must be qualified pursuant to subsection (4) of this section and be selected from an eligibility roster established pursuant to applicable chief justice directive.

(C) When a mental health professional performs the evaluation, the court shall appoint or approve the selection of the mental health professional as the evaluator. Within seven days after the appointment, the evaluator shall comply with the disclosure provisions of subsection (1.2) of this section. The court shall, at the time of the evaluator's appointment, order one or more of the parties to deposit a reasonable sum with the court to pay the cost of the evaluation. The court may order the reasonable charge for the evaluation and report to be assessed as costs between the parties at the time the evaluation is completed.

(I.3) In determining whether to order an evaluation pursuant to this section, in addition to any other considerations the court deems relevant, the court shall consider:

(A) Whether an investigation by a child and family investigator pursuant to section 14-10-116.5 would be sufficient or appropriate given the scope or nature of the disputed issues relating to the allocation of parental responsibilities for the child;

(B) Whether an evaluation pursuant to this section is necessary to assist the court in determining the best interests of the child; and

(I.5) A party may request a supplemental evaluation to the evaluation ordered pursuant to subsection (1)(a)(I) of this section. The court shall appoint another qualified evaluator to perform the supplemental evaluation at the initial expense of the moving party. The evaluator appointed to perform the supplemental evaluation shall comply with the disclosure provisions of subsection (1.2) of this section. The court shall not order a supplemental evaluation if it determines that any of the following applies, based on motion and supporting affidavits:

(A) Such motion is interposed for purposes of delay;

(B) A party objects, and the party who objects or the child has a physical or mental condition that would make it harmful for such party or the child to participate in the supplemental evaluation;

(D) The moving party has failed or refused to cooperate with the first evaluation;

(E) The weight of the evidence other than the evaluation concerning the allocation of parental responsibilities or parenting time by the mental health professional demonstrates that a second evaluation would not be of benefit to the court in determining the allocation of parental responsibilities and parenting time; or

(F) In addition to the evaluation ordered pursuant to subparagraph (I) of this paragraph (a), there has been an investigation and report prepared by a child and family investigator pursuant to section 14-10-116.5, and the court finds that a supplemental evaluation concerning parental responsibilities will not serve the best interests of the child.

(II) Each party and the child, if possible, shall cooperate in the supplemental evaluation. If the court finds that the supplemental evaluation was necessary and materially assisted the court, the court may order the costs of such supplemental evaluation to be assessed as costs between the parties. Except as otherwise provided in this section, the report is confidential and is not available for public inspection unless by order of court. The cost of each department of human services evaluation is based on an ability to pay and must be assessed as part of the costs of the action or proceeding, and, upon receipt of such sum by the clerk of court, the clerk of court shall transmit the money to the department or agency performing the evaluation.

(b) The person signing a report or evaluation and supervising its preparation must be a licensed mental health professional. The licensed mental health professional signing a report or evaluation must be qualified as competent, by training and experience, as described in subsection (4) of this section. Unlicensed associates or other persons may work with the mental health professional to prepare the report.

(c) An evaluator shall strive to engage in culturally informed and nondiscriminatory practices, and strive to avoid conflicts of interest or multiple relationships in conducting evaluations.

(1.2) (a) Within seven days after his or her appointment, the evaluator shall disclose to each party, attorneys of record, and the court any familial, financial, or social relationship that the evaluator has or has had with the child, either party, the attorneys of record, or the judicial officer and, if a relationship exists, the nature of the relationship.

(b) Based on the disclosure required pursuant to paragraph (a) of this subsection (1.2), the court may, in its discretion, terminate the appointment and appoint a different evaluator in the proceedings. A party has seven days from the date of the disclosure to object to the appointment based upon information contained in the disclosure. If a party objects to the appointment, the court shall appoint a different person or confirm the appointment within seven days after the date of the party's objection. If no party timely objects to the appointment, then the appointment is deemed confirmed.

(2) In preparing the report concerning a child, the evaluator may consult any person who may have information about the child and the child's potential parenting arrangements. Upon order of the court, the evaluator may refer the child to other professional personnel for diagnosis. The evaluator may consult with and obtain information from medical, mental health, educational, or other expert persons who have served the child in the past without obtaining the consent of the parent or the person allocated parental responsibilities for the child; but the child's consent must be obtained if the child has reached the age of fifteen years unless the court finds that the child lacks mental capacity to consent. If the requirements of subsections (3) to (7) of this section are fulfilled, the evaluator's report may be received in evidence at the hearing.

(3) The evaluator shall mail the report to the court and to counsel and to any party not represented by counsel at least twenty-one days prior to the hearing. The evaluator shall make available to counsel and to any party not represented by counsel his or her file of underlying data and reports, complete texts of diagnostic reports made to the evaluator pursuant to the provisions of subsections (2), (5), and (6) of this section, and the names and addresses of all persons whom the evaluator has consulted. Any party to the proceeding may call the evaluator and any person with whom the evaluator has consulted for cross-examination. No party may waive his or her right of cross-examination prior to the hearing.

(4) A person is not allowed to testify as an expert witness regarding a parental responsibilities or parenting time evaluation that the person has performed pursuant to this section unless the court finds that the person is qualified as competent, by training and experience, in the areas of:

(a) The effects of divorce and remarriage on children, adults, and families;

(a.5) The effects of domestic violence on children, adults, and families, including the connection between domestic violence and trauma on children, child abuse, and child sexual abuse in accordance with section 14-10-127.5. The person's training and experience must be provided by recognized sources with expertise in domestic violence and the traumatic effects of domestic violence in accordance with section 14-10-127.5. As of January 1, 2024, initial and ongoing training must include, at a minimum:

(I) Ten initial hours of training on domestic violence, including coercive control, and its traumatic effects on children, adults, and families;

(II) Ten initial hours of training on child abuse and child sexual abuse and its traumatic effects; and

(III) Fifteen subsequent hours of training every five years on domestic violence, child abuse, and child sexual abuse and the traumatic effects on children, adults, and families.

(b) Appropriate parenting techniques;

(d) Child and adult psychopathology;

(e) Applicable clinical assessment techniques; and

(f) Applicable legal and ethical requirements of parental responsibilities evaluation.

(5) If an evaluation is indicated in an area beyond the training or experience of the evaluator, the evaluator shall consult with a mental health professional qualified by training or experience, as described in subsection (4) of this section, in that area. Such areas may include, but are not limited to, domestic violence, child abuse, child sexual abuse, alcohol or substance abuse, or psychological testing.

(6) (a) An evaluator may make specific reports when the evaluator has interviewed and assessed all parties to the dispute, assessed the quality of the relationship, or the potential for establishing a quality relationship, between the child and each of the parties, and had access to pertinent information from outside sources.

(b) An evaluator may make reports even though all parties and the child have not been evaluated by the same evaluator in the following circumstances, if the evaluator states with particularity the limitations of the evaluator's findings and reports:

(I) Any of the parties reside outside Colorado and it would not be feasible for all parties and the child to be evaluated by the same mental health professional; or

(II) One party refuses or is unable to cooperate with the court-ordered evaluation; or

(III) The mental health professional is a member of a team of professionals that performed the evaluation and is presenting recommendations of the team that has interviewed and assessed all parties to the dispute.

(7) (a) A written report of the evaluation shall be provided to the court and to the parties pursuant to subsection (3) of this section.

(b) The report of the evaluation shall include, but need not be limited to, the following information:

(I) A description of the procedures employed during the evaluation;

(II) A report of the data collected;

(III) A conclusion that explains how the resulting recommendations were reached from the data collected, with specific reference to criteria listed in section 14-10-124 (1.5), and, if applicable, to the criteria listed in section 14-10-131, and their relationship to the results of the evaluation;

(IV) Recommendations concerning the allocation of parental responsibilities for the child, including decision-making responsibility, parenting time, and other considerations; and

(V) An explanation of any limitations in the evaluations or any reservations regarding the resulting recommendations.

(8) All evaluations and reports, including but not limited to supplemental evaluations and related medical and mental health information, that are submitted to the court pursuant to this section shall be deemed confidential without the necessity of filing a motion to seal or otherwise limit access to the court file under the Colorado rules of civil procedure. An evaluation or report that is deemed confidential under this subsection (8) shall not be made available for public inspection without an order of the court authorizing public inspection.

(9) On and after January 1, 2022, a party wishing to file a complaint related to a person's duties as an evaluator shall file such complaint in accordance with the applicable provisions in chief justice directives.

(10) The requirements of this section apply only to activities related to work performed that is related to proceedings concerning the allocation of parental responsibilities. All other licensure requirements for mental health professionals, as established by the department of regulatory agencies and set forth in article 245 of title 12, still apply.

History

Source: L. 71: R&RE, p. 530, 1. C.R.S. 1963: 46-1-27. L. 76: (1) amended, p. 529, 1, effective April 16. L. 79: (1) amended, p. 646, 1, effective March 2. L. 83: Entire section amended, p. 649, 1, effective June 10. L. 88: Entire section amended, p. 639, 1, effective May 11. L. 93: IP(1)(a)(I), IP(4), and (7)(b)(IV) amended, p. 577, 10, effective July 1. L. 94: (1)(a)(II) amended, p. 2645, 108, effective July 1. L. 96: (1)(b) amended, p. 1287, 1, effective January 1, 1997. L. 98: IP(1)(a)(I), (2), (3), (4), (6)(b), and (7) amended, p. 1384, 13, effective February 1, 1999. L. 2005: (1)(a) amended, p. 1224, 1, effective June 3; (1)(a)(I.5)(F) amended, p. 963, 10, effective July 1. L. 2006: (8) added, p. 447, 1, effective April 13. L. 2012: (1)(a)(I) and IP(1)(a)(I.5) amended and (1.2) added, (SB 12-056), ch. 108, p. 368, 3, effective July 1; (3) amended, (SB 12-175), ch. 208, p. 832, 30, effective July 1. L. 2013: (1)(a)(I) amended and (1)(a)(I.3) added, (HB 13-1259), ch. 218, p. 1000, 3, effective July 1. L. 2015: (1)(a)(II) amended, (SB 15-099), ch. 99, p. 289, 1, effective August 5. L. 2018: (1)(a)(I) amended, (SB 18-092), ch. 38, p. 401, 15, effective August 8. L. 2021: (1)(a)(I), IP(1)(a)(I.5), (1)(a)(II), (1)(b), IP(4), (5), (6)(a), and IP(6)(b) amended and (1)(c), (4)(a.5), (6)(c), (9), and (10) added (HB 21-1228), ch. 292, p. 1732, 6, effective June 22. L. 2023: (4)(a.5) amended, (HB 23-1178), ch. 266, p. 1584, 3, effective May 25.

Annotations

Cross references: (1) For the licensing of mental health professionals, see article 245 of title 12.

(2) For the legislative declaration contained in the 1993 act amending the introductory portions to subsections (1)(a)(I) and (4) and subsection (7)(b)(IV), see section 1 of chapter 165, Session Laws of Colorado 1993. For the legislative declaration contained in the 1994 act amending subsection (1)(a)(II), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declarations contained in the 2005 act amending subsection (1)(a)(I.5)(F), see sections 1 and 3 of chapter 244, Session Laws of Colorado 2005. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. For the legislative declaration in HB 21-1228, see section 1 of chapter 292, Session Laws of Colorado 2021.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Therapist Privilege in Custody Cases", see 15 Colo. Law. 47 (1986). For article, "Helping a Client Handle a Child Custody Evaluation", see 16 Colo. Law. 1991 (1987). For article, "Custody Evaluations in Colorado", see 18 Colo. Law. 1523 (1989). For article, "Evaluating Child Custody Evaluations", see 22 Colo. Law. 2541 (1993). For article, "Considerations Regarding the Role of the Special Advocate", see 29 Colo. Law. 107 (July 2000). For article, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). For article, "The Child's Wishes in APR Proceedings: An Evidentiary Conundrum", see 36 Colo. Law. 33 (Jan. 2007). For article, "CFIs and APR Evaluators--Similarities and Differences", see 37 Colo. Law. 31 (Jan. 2008). For article, "Evaluating the Evaluators: Work Product Reviews as Evidence", see 40 Colo. Law. 35 (May 2011).

Annotator's note. Since 14-10-127 is similar to repealed 46-1-5 (7), C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

The purpose of the legislation providing for the preparation and filing of reports in custody proceedings is to make the information contained therein available to assist the court in determining what is in the best interest of the children concerned. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

The purpose of the legislation providing for court assistants in the capacity of investigators of domestic relations cases to assist the court in the transaction of the judicial business of said court was obviously to assist the court and not to replace it. The general assembly would have no power to substitute an investigator for a judge, and neither would such legislation authorize a trial court to deny to the parties any of the usual attributes of a fair trial in open court upon due notice. Anderson v. Anderson, 167 Colo. 88, 445 P.2d 397 (1968).

Provisions of this section do not apply to custody determination in a dependency proceeding under the Children's Code. People in Interest of D.C., 851 P.2d 291 (Colo. App. 1993).

Provisions of this section do not apply to the child's treating therapist who was designated as a witness to testify as to her observations of the minor child. In re Woolley, 25 P.3d 1284 (Colo. App. 2001).

The act of the general assembly ( 46-1-5 (7), C.R.S. 1963), which purported to authorize the trial court to call upon the probation department for a report concerning "the ability of each party to serve the best interest of the child", and further directing that "Each report shall be considered by the court" could not be so construed as to deny due process which includes the right to be heard in open court and to have a determination of issues based upon competent evidence offered by persons who submit themselves to cross examination. Anderson v. Anderson, 167 Colo. 88, 445 P.2d 397 (1968).

A probation officer, or other persons, who have been designated to investigate and report to the court in custody hearings matters involving the ability or fitness of parents to best serve the interests of their children, are subject to examination as witnesses concerning matters contained in their reports. Saucerman v. Saucerman, 170 Colo. 318, 461 P.2d 18 (1969).

However, touching upon matters related to them in confidence, the trial court should preliminarily rule in each instance what matters are in fact confidential, and whether the public interest requires the confidence to be preserved, and no examination of the officer should be permitted with respect to such confidential matters. Saucerman v. Saucerman, 170 Colo. 318, 461 P.2d 18 (1969).

Where the trial court received in evidence the investigative reports of welfare and health department employees in reference to conditions found in the respective homes of the two contestants, and in reference to the psychological effects living with the father or the mother might have on one of the children, and the record indicated that at one hearing after the reports were filed the individuals who made the reports were either in court or could have been made available to the parties for cross-examination, there was no unfairness nor a denial of due process. Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302 (1970).

Opportunity to test report's reliability and offer evidence exists. Because any party has the right to call for cross-examination of the investigator and any person he has consulted, and because the investigator's file is available to counsel, ample opportunity exists for a party to test the reliability of the report and to offer evidence in explanation of or to disprove any statements or conclusions based on hearsay. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

In making an order changing the custody of children, the trial court is actually making the decision, though such order is based on the recommendations of a psychiatrist and welfare personnel whose reports constitute nothing more than recommendations. Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302 (1970).

Court did not improperly utilize an investigative report made by an officer of the juvenile probation department in arriving at its decision relative to custody, for while it is true that the investigative report was not formally offered and received in evidence, the report was made a part of the record and had been furnished previously to both parties, and although she did not choose to do so, the wife had the right to call and examine the author of the report. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); In re Lorenzo, 721 P.2d 155 (Colo. App. 1986).

The reports simply furnish specific information of a specialized nature for aid and assistance to the trial court, but in the final analysis the judge makes the decision, and whatever recommendations may be made to the judge, be they by experts or counsel, are merely recommendations and nothing more. Aylor v. Aylor, 173 Colo. 294, 478 P.2d 302 (1970).

Where objections and exceptions were filed to the report of the probation department, since it was a hearsay document, if the conclusions reached therein were objected to by either party, it would be necessary that competent evidence, upon which the conclusions were based, be presented in open court. Anderson v. Anderson, 167 Colo. 88, 445 P.2d 397 (1968).

Waiver of objections to admission of report. Unless a party notifies the court and the opposing party within 10 days after receipt of a copy of the report (or if a copy has not been received at least 10 days prior to the hearing day, then at or prior to the commencement of the hearing at which the report may be used) that he intends to object to the admission of the report on the grounds of noncompliance with the 10-day rule or the hearsay nature of the report, any such objections are waived. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

Where a copy of the report was received by counsel a reasonable time prior to the hearing and no objection was made thereto until after the commencement of the hearing, objections as to hearsay and the 10-day rule were waived. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

Effect of valid objection. If a valid objection is made within the period specified above, then, on motion of either party or of the court, the court shall grant a reasonable continuance of the custody hearing date in order that the parties may obtain appropriate testimony. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

The trial court erred in relying upon the probation report where it afforded no opportunity for the husband to offer evidence in explanation thereof, or to disprove any conclusions based on hearsay that were contained therein. Anderson v. Anderson, 167 Colo. 88, 445 P.2d 397 (1968).

It was not prejudicial error for the trial court to have received in evidence the hearsay reports of the case worker of the welfare department in custody proceedings, since the nature of the "report" was such that the father could not possibly have been prejudiced by anything contained therein, and furthermore, it affirmatively appeared from the court's decree that it did not in any manner enter into the court's thinking to the prejudice of the father. Suzuki v. Suzuki, 162 Colo. 204, 425 P.2d 44 (1967).

Compliance with the 10-day provisions of this section is not a condition precedent to the reception of the report. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

Effect of noncompliance. Noncompliance with the 10-day rule merely prohibits the court from proceeding with a hearing wherein the report can be considered absent consent of or waiver by the parties. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).

Communications disclosed pursuant to this section are not privileged under 13-90-107 since the information was necessary to make an evaluation for the court, not to treat the person disclosing the information. Anderson v. Glismann, 577 F. Supp. 1506 (D. Colo. 1984).

Actions of a court-appointed expert are made under the authority of the state, but not on behalf of the state, and will not sustain a cause of action under 42 U.S.C. 1983. Anderson v. Glismann, 577 F. Supp. 1506 (D. Colo. 1984).

The language that "the court shall" order an evaluation or a supplemental evaluation is mandatory unless the express conditions apply, and a trial court must make specific findings to support its denial of any requested evaluation in order to insure effective and meaningful review. In re Sepmeier, 782 P.2d 876 (Colo. App. 1989).

Trial court erred when it denied petitioner's request for an evaluation. This section applies to both the determination of parenting time and the allocation of parental decision-making when a court is asked to rule on the intended relocation of one of the parents. Because the statute is mandatory, a trial court must order an evaluation pursuant to this section when requested by either party when one party seeks to relocate. In re Hall, 241 P.3d 540 (Colo. 2010).

The trial court must make specific findings to support its denial of any requested evaluation. In re Chatten, 967 P.2d 206 (Colo. App. 1998).

Denial of supplemental custody evaluation appropriate where court found that a further delay in the resolution of the custody motion would cause emotional stress to the child and that discussions mother had had with the child as to where she was going to live and attend school had already contributed to the child's anxiety, stress, and resulting stomach aches. In re Chatten, 967 P.2d 206 (Colo. App. 1998).

"Custody proceedings" does not automatically include a motion to modify custody. The threshold requirements of 14-10-132 must be met before a custody proceeding is established. In re Michie, 844 P.2d 1325 (Colo. App. 1992).

Denying petitioner's motion for custody evaluation based upon inability to pay was abuse of discretion by court. Hernandez v. District Ct., 814 P.2d 379 (Colo. 1991).

Court properly balanced its obligation to accord mother due process against its need to efficiently manage the case when it denied mother's last minute request to call 40 witnesses without providing prior notice to father. In re Hatton, 160 P.3d 326 (Colo. App. 2007).

Applied in In re Schulke, 40 Colo. App. 473, 579 P.2d 90 (1978); In re Agner, 659 P.2d 53 (Colo. App. 1982); In re Kasten, 814 P.2d 11 (Colo. App. 1991).