Emerging Trends - The End of the Special Advocate?

THE END OF THE SPECIAL ADVOCATE?
News From the Legislature

Just recently the Governor signed into law a revised version of the statute that detailed the duties and responsibilities of “either [the] representative of the child or [the] special advocate.” The new law now separates the individuals appointed to these positions and gives them qualifications, duties, and responsibilities distinct from each other. Perhaps the boldest change, mainly because it will require us to accustom ourselves to using new lingo, is that the “special advocate” is removed from the statute and replaced with the Child and Family Investigator, or C.F.I.

Colorado Revised Statutes § 14-10-116.5 is the new statute under which the legislature created the Child and Family Investigator. Despite the name change from Special Advocate to C.F.I., the actual duties and responsibilities remain fairly similar. The individual appointed as the C.F.I. in a domestic relations case may be anyone with the appropriate training, including attorneys, mental health professionals, or others. The C.F.I., like the former Special Advocate, will investigate the best interests of the child as it relates to the issues in the case, will write a report for the court, make recommendations, and can be called as a witness. The biggest distinction between the Special Advocate and the C.F.I. is that the C.F.I. must limit his or her investigation, recommendations, and report to issues specifically outlined by the court in the order appointing the C.F.I.

The “representative of the child” under the former C.R.S. § 14-10-116, still exists. However, the individual is now deemed the Legal Representative of the Child. This individual, unlike the former representative of the child or the special advocate, must be an attorney. Different from the new C.F.I., the Legal Representative of the Child participates in every aspect of a case for which the court appointed the individual. The Legal Representative of the Child does not file a report with the court and cannot testify as a witness.

While both the C.F.I. and the Legal Representative of the Child make investigations about the best interests of the child in an allocation of parental responsibilities case, it is important to remember that they do differ. Specifically, the Legal Representative can investigate any matters involving the best interests of the child and actually represents the best interests of the child. Whereas, the C.F.I. serves the court and can only investigate issues ordered by the court. Most importantly, the court may not appoint the same individual in any case to serve as the C.F.I. and Legal Representative of the Child.

In another new law affecting the appointment of individuals in domestic relations cases, the legislature officially defined the duties and responsibilities of the Parenting Coordinator (PC, C.R.S. § 14-10-128.1) and created a new position, the Decision Maker (DM, C.R.S. § 14-10-128.3). The duties of the PC are to assist the parties in a domestic relations case involving children by guiding the parties to make decisions together, to develop better communications skills, and to co-parent better together. The PC does not have any decision-making authority.

The DM is the individual who holds decision-making authority. The DM has authority to interpret and clarify prior court orders involving child support, parenting time, and specific disputed parental decisions. The court may appoint the same individual to serve as the PC and DM in a case. Further, a court may appoint a C.F.I. as the PC for post-decree purposes upon agreement by the parties. If this occurs, the PC may not thereafter serve in the capacity of C.F.I.

Both the PC and DM will only be appointed in post-decree matters and their appointment may not extend beyond two years. The parties must agree to the appointment of a PC, unless the court finds the appointment in the best interests of the child and makes specific findings necessary for an appointment. The DM, on the other hand, is only appointed when the parties consent.

The new statute concerning the appointment of the C.F.I. and the Legal Representative take effect on July 1, 2005.

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