As reported by the Colorado Bar’s Legal Connection Blog, the Colorado Supreme Court Chief Justice has modified, effective April 2011, the Directive on Child and Family Investigations, Chief Justice Directive 04-08.

As the blog summarizes the changes they will:

• “Establish a cap of $2,000.00 for the investigation and report;
• Require further order of the court and specific findings of extraordinary circumstances to justify fees and costs that exceed the cap;
• Eliminate the CFIs authority to perform psychological testing or drug and alcohol evaluations;
• Eliminate CFI quasi-judicial immunity in the order of appointment; and
• Eliminate the CFI authority to conduct a meeting with parties when a protection order restrains such contact.”

I see this as an early response to the growing questioning of the cost, intrusiveness and appropriateness of relying on outside investigators, evaluators, etc., and consistent with a desire to “get back to basics” and “let judges be judges.”   This is also consistent with a sense that the use of such non-judicial personnel, far from speeding court processes and saving judge time, may be having the opposite effect.

See, Lawyer Skills Training for DV Representation: Tips from a Retired Judge,
12 Domestic Violence Report 1 (Oct/Nov 2006):

Mental health evaluations should be opposed in cases in which there are no issues of mental illness. Mental health evaluations and psychological tests cannot establish that intimate partner violence occurred or did not occur.  There is no diagnosis of violent intimate partner or victim of intimate partner violence. Lawyers should oppose evaluations also because evaluations delay the proceedings and increase litigation costs.

I declined to order mental health evaluations unless there were allegations of mental illness during the 16 years when I presided in the New York Family Court and Supreme Court. I was never reversed for making decisions in custody, visitation, and child protection cases without mental health evaluations.

Furthermore, victims of intimate partner violence may appear less stable than their violent partners because they are suffering from the emotional effects of abuse and fear of losing custody of their children. For these reasons, the test results may not provide accurate assessments of their parental capacity. Abusive partners, by contrast appear calm and self-assured [footnotes omitted]“

See also, generally, the National Council of Juvenile and Family Court Judge’s publication,  Navigating Custody and Visitation Evaluation in Domestic Violence Cases: A Judges Guide, at page 13 discussing when, in domestic violence cases, an evaluator is or is not needed or helpful.  “There will be cases in which the evidence is clear, and no further evaluation is necessary to determine that a child’s best interests will be served by granting custody to the non-abusive parent. That determination may be driven by a statutory presumption against granting custody or visitation to the abusive parent under such circumstances, or by the court’s own judgment after a broader examination of any violence or abusive behavior.”  The publication also discusses circumstances in which such evaluations are needed, and how to manage the process.)

Obviously research is needed on the impact of changes such as those being put in place in Colorado.  I hope Colorado will take the opportunity to research the impact of this change on costs, outcomes (including how often cases return to court), and public trust and confidence in the courts.  Maybe this is appropriate for an SJI Technical Assistance Grant (which has a low match requirement) to assist in such research.