It’s time to reform family court system
In our family court system, Colorado has a rather simple and efficient system for resolving contested custody cases.
In most cases the court appoints a Child and Family Investigator (CFI) or a Parental Rights Evaluator (PRE). It sounds good. What could be wrong with appointing a professional with some mental health systems background to conduct an investigation to assist the court in reaching a decision that is best for the children ?
The CFI is given a deadline to prepare a report that goes to both parties and then a trial date is set. Somewhere in between the trial date and the distribution of the CFI’s report, the parties are required to attempt mediation. At mediation, the parties face a blunt reality. In most cases, the judge at trial is going to follow the recommendations of the CFI. That’s the problem.
One of the fundamental guarantees of the U.S. Constitution is the protection of due process, which is guaranteed by the Fifth Amendment and subsequently applied to the states through the 14th Amendment.
Fundamental due process normally means that any decision by a court will be taken only after a trial in which a) all testimony is given under oath; b) all testimony is subject to cross examination; and c) parties get to know what evidence is being considered against them and are given an opportunity to present contradictory testimony.
Due process was written into our Constitution as a direct reaction to what were known as “star chambers” which were special English courts in the 17th century. Our family courts have devolved into a system very much like star chambers in which due process of law is non-existent.
Parties do not get to know what the CFI has based his or her opinion on until after the CFI decision is rendered and then obviously it is too late to present contrary evidence. The CFI bases his or her opinion on information that is not offered under oath and not subject to cross-examination.
I have been representing battered women and mothers of sexually abused children in high-conflict custody cases for over 30 years. One of the questions I routinely ask court-appointed evaluators is, “How often are you wrong?” Every honest evaluator has replied, “How would I know?”
It is a comforting belief for society that we have a system that uses independent experts to ensure that the best interests of minor children are protected in family court, but unfortunately under our current system it is a delusional belief.
In criminal court (with all of its problems), we have a guarantee that all defendants have a right to a trial by jury, a court-appointed public defender (if they can’t afford counsel), and, most important, specific rules of evidence that ensure that expert testimony is not allowed to be considered unless it can be proven to meet a high standard of reliability (that is, it has to be a science that can be tested, replicated and confirmed to be valid).
In civil court involving property and money, parties are guaranteed the right to trial by jury, and specific rules of evidence that ensure that expert testimony is not allowed unless it can be proven to meet the same high standard of reliability as in criminal court.
Why do we allow our family courts to operate with fewer protections of due process then every other part of our legal system ?
There is of course an industry of CFIs who make their living offering opinions to the courts. There is of course the worry that our court system will be overwhelmed if too many cases go trial and that the current system is efficient in persuading parties to waive their right to trial. But most important – there is the comforting belief that we are reaching the right outcome for children even if the system may not be fair, and there may be a little cheating on due process.
Unfortunately, that comforting belief that the court system works for children in high-conflict cases is not supported by any reliable scientific evidence. There have been several significant studies (including one recent U.S. Justice Department-funded study) that suggest that victims of domestic violence routinely end up losing custody to their abuser when they don’t agree to share joint custody.
It is time to reform our family court system. Our children deserve better.