H.B. 233 - Exceptions to Immunity Granted to Government Employees

H.B. 33 Enrolled 2008

WAIVERS OF IMMUNITY - EXCEPTIONS

2008 GENERAL SESSION

STATE OF UTAH

Chief Sponsor: Gregory H. Hughes

Senate Sponsor: Dan R. Eastman

General Description:

This bill amends the Utah Human Services Code and the Governmental Immunity Act of Utah to provide exceptions to the immunity granted to government employees and certain persons, officials, and institutions.

Highlighted Provisions:

This bill:

. provides that the immunity of a person, official, or institution who participates or
assists in a child protection matter does not apply if the person intentionally, willfully, or knowingly engages in certain misconduct;

. provides that the immunity of a government employee during the performance of an
employee's duties, within the scope of employment, or under color of authority does
not apply if the employee intentionally or knowingly engages in certain misconduct;
and

. makes technical changes.

Utah Code Sections Affected:

AMENDS:

62A-4a-410, as last amended by Laws of Utah 2005, Chapter 102

63-30d-202, as enacted by Laws of Utah 2004, Chapter 267

62A-4a-410. Immunity from liability -- Exceptions.

(1) Except as provided in Subsection (3), any person, official, or institution participating in good faith in making a report, taking photographs or X-rays, assisting an investigator from the division, serving as a member of a child protection team, or taking a child into protective custody pursuant to this part, is immune from any liability, civil or criminal, that otherwise might result by reason of those actions.

* * * * *

(3) The immunity described in Subsection (1) does not apply if the person, official, or institution:

(a) acted or failed to act through fraud or willful misconduct;

(b) in a judicial or administrative proceeding, intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry in the proceeding; or

(c) intentionally or knowingly:

(i) fabricated evidence; or

(ii) except as provided in Subsection (4), with a conscious disregard for the rights of others, failed to disclose evidence that:

(A) was known to the person, official, or institution; and

(B) (I) was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a pending judicial or administrative proceeding if the person, official, or institution knew of the pending judicial or administrative proceeding; or

(II) was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a judicial or administrative proceeding, if disclosure of the evidence was requested of the employee by a party to the proceeding or counsel for a party to the proceeding.

(4) Immunity is not lost under Subsection (3)(c)(ii), if the person, official, or institution:

(a) failed to disclose evidence described in Subsection (3)(c)(ii), because the person, official, or institution is prohibited by law from disclosing the evidence; or

(b) (i) pursuant to the provisions of 45 CFR 164.502(g)(5), refused to disclose evidence described in Subsection (3)(c)(ii) to a person who requested the evidence; and

(ii) after refusing to disclose the evidence under Subsection (4)(b)(i), complied with or responded to a valid court order or valid subpoena received by the person, official, or institution to disclose the evidence described in Subsection (3)(c)(ii).

§ 63-30d-202. Act provisions not construed as admission or denial of liability -- Effect of waiver of immunity -- Exclusive remedy -- Joinder of employee -- Limitations on personal liability.

(1) (a) Nothing contained in this chapter, unless specifically provided, may be construed as an admission or denial of liability or responsibility by or for a governmental entity or its employees.

(b) If immunity from suit is waived by this chapter, consent to be sued is granted, and liability of the entity shall be determined as if the entity were a private person.

(c) No cause of action or basis of liability is created by any waiver of immunity in this chapter, nor may any provision of this chapter be construed as imposing strict liability or absolute liability.

(2) Nothing in this chapter may be construed as adversely affecting any immunity from suit that a governmental entity or employee may otherwise assert under state or federal law.

(3) (a) Except as provided in Subsection (3)(c), an action under this chapter against a governmental entity for an injury caused by an act or omission that occurs during the performance of an employee's duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.

(b) Judgment under this chapter against a governmental entity is a complete bar to any action by the claimant, based upon the same subject matter, against the employee whose act or omission gave rise to the claim.

(c) A plaintiff may not bring or pursue any civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless:

(i) the employee acted or failed to act through fraud or willful misconduct;

(ii) the injury or damage resulted from the employee driving a vehicle, or being in actual physical control of a vehicle:

(A) with a blood alcohol content equal to or greater by weight than the established legal limit;

(B) while under the influence of alcohol or any drug to a degree that rendered the person incapable of safely driving the vehicle; or

(C) while under the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely driving the vehicle;

(iii) injury or damage resulted from the employee being physically or mentally impaired so as to be unable to reasonably perform the employee's job function because of:

(A) the use of alcohol;

(B) the nonprescribed use of a controlled substance as defined in Section 58-37-4 ; or

(C) the combined influence of alcohol and a nonprescribed controlled substance as defined by Section 58-37-4;

(iv) in a judicial or administrative proceeding, the employee intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry under this section; or

(v) the employee intentionally or knowingly:

(A) fabricated evidence; or

(B) except as provided in Subsection (3)(d), with a conscious disregard for the rights of others, failed to disclose evidence that:

(I) was known to the employee; and

(II) (Aa) was known by the employee to be relevant to a material issue or matter of inquiry in a pending judicial or administrative proceeding, if the employee knew of the pending judicial or administrative proceeding; or

(Bb) was known by the employee to be relevant to a material issue or matter of inquiry in a judicial or administrative proceeding, if disclosure of the evidence was requested of the employee by a party to the proceeding or counsel for a party to the proceeding.

(d) The exception, described in Subsection (3)(c)(v)(B), allowing a plaintiff to bring or pursue a civil action or proceeding against an employee, does not apply if the employee failed to disclose evidence described in Subsection (3)(c)(v)(B), because the employee is prohibited by law from disclosing the evidence.

(4) Except as permitted in Subsection (3)(c), no employee may be joined or held personally liable for acts or omissions occurring:

(a) during the performance of the employee's duties;

(b) within the scope of employment; or

(c) under color of authority.

Keep My Family Out of This: The Proposed New CJA Rule 4-509

The Supreme Court and the Judicial Council have proposed, among other things, amendments to the Code of Judicial Administration by creating a new rule, Rule 4-509, pertaining to Court-appointed parent coordinator. The comment period expires May 28, 2008.

In short, I urge everyone committed to the rule of law to oppose passage of proposed Rule 4-509 on the grounds that the practice of divorce and family law is being overrun by a regulatory policy that, at the pace it's on now, seems poised to challenge the U.S. Tax Code for sheer volume, complexity, redundancy, and rigidity.

But don't take my word for it (although if you wish, my comments are found in the column to the right of the text of proposed Rule 4-509); proposed Rule 4-509 speaks for itself (and it's rather loquacious at that):

Text of Proposed CJA Rule 4-509

My Comment

Applicability This rule applies in any case in which a parenting plan is required under Utah Code Section 30-3-10.8 and a parent coordinator is ordered by the court. Nothing in this rule limits, supersedes, or replaces court-ordered or mandatory 7 mediation. Statement of the Rule (1) Role of the parent coordinator. (1)(A) Upon court order, a parent coordinator may be appointed to serve in child custody and parent-time disputes. The parent coordinator’s role is to consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served. The role of the parent coordinator is like that of the mediator in that the parent coordinator seeks to elicit cooperation and agreement between the parents. Using his or her expertise in child development, however, the parent coordinator also, after hearing the parents’ perceptions and thoughts, offers advice and guidance with regard to specific decisions. With the help of the parent coordinator, the parents then create, revise, or clarify their parenting plan, as defined in 30-3-10.7 (1). (1)(C) The role of the parent coordinator is not primarily investigative, although the parent coordinator may meet and/or interview the children briefly during the course of the consultation process. Suggestions will not be binding upon the parties, and will not be sent to the Court or others unless both parents agree to their dissemination and sign written releases to that effect. Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree. If a viable parenting plan is established through work with the parent coordinator, the parents may stipulate to a custody and parent-time agreement, and thereby avoid active involvement of the court. (2) Term and condition of consultation. (2)(A) The order appointing the parent coordinator shall address: (2)(A)(i) the minimum number of visits, not to be less than 4 hours of face to face joint consultation, with the parent coordinator, unless the formal parenting plan is finalized sooner; (2)(A)(ii) responsibility for payment of the parent coordinator’s fees; and (2)(A)(iii) should specify any limitations on the role of the parent coordinator. (2)(B) Termination of the services shall not excuse either party’s responsibility for fees already incurred. (3) Content of consultation. The parent coordinator may consult with the parties on a wide variety of issues related to child custody/parent-time as well as other needs of the children. The focus will be the developmental and other needs of the children in the family. The goal will be to preserve relationships and protect the children from the disruption and conflict that can occur with divorce. Specific topics that may be covered include: (3)(A) methods of communication between the parents; (3)(B) responsibilities of each parent regarding decision-making and delivery of care; (3)(C) methods of resolving conflict or disagreement without child involvement; (3)(D) ways in which the parents can support the child’s relationship with the other parent; (3)(E) parental agreement and consistency regarding the parents’ expectations of the child and discipline techniques; (3)(F) dates and times of pick-up and delivery; (3)(G) parent-time during vacations and holidays; (3)(H) method of pick-up and delivery; (3)(I) transportation to and from each other’s home; (3)(J) selection of child care and baby-sitting; (3)(K) adherence to special diet, clothing, bedtime, and recreational requirements; (3)(L) child’s participation in recreational and other activities with each parent; (3)(M) notification of other parent when surrogate care is needed; (3)(N) selection of surrogate care; (3)(O) alterations in the parent time schedule; (3)(P) participation of relatives and friends during parent-time; (3)(Q) execution of daily routines; (3)(R) adherence to conditions for parent-time (e.g., supervision by a third party, drug monitoring, etc.); (3)(S) school attendance; (3)(T) selection of school; (3)(U) access to information about the child (e.g., from school, physician); (3)(V) step-parent issues; (3)(W) administration of medication; and (3)(X) any other issues as agreed upon by the parties. (4) Qualifications. To be eligible to serve as a parent coordinator, the individual must meet the same licensure requirements as a custody evaluator as noted in Rule 4-903(1) (4)(A) social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(B) doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(C) physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure; or (4)(D) marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure; and must have the following minimum qualifications: (4)(E) formal training in child development; this training may have been received during one of the degree programs referred to above. (4)(F) at least 3-year post-licensure clinical practice substantially focused on child/marital/family therapy; and (4)(G) a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters; and (4)(H) beginning in 2010, at least a total of 18 hours of continuing education during the previous 3 years and every 3 years thereafter; training hours should include all of the following areas: (4)(H)(i) conflict resolution theory and techniques, including (4)(H)(ii) mediation; (4)(H)(iii) child development and psychology, including (4)(H)(iv) adjustment to divorce; (4)(H)(v) domestic relations law; (4)(H)(vi) familiarity with the dynamics of domestic violence; and (4)(H)(vii) associated safety and intervention considerations; and (4)(I) in areas of the state where there is a shortage of services, a professional who meets the licensure requirements outlined above in (4)(A) – (4)(E) may act as a parent coordinator in up to 10 cases before being required to meet the remaining qualifications. (5) Impartiality. (5)(A) A parent coordinator shall maintain impartiality in the process of parenting coordination. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual. (5)(B) A parent coordinator shall withdraw if the parent coordinator determines he or she cannot act in an impartial or objective manner. (5)(C) A parent coordinator shall neither give nor accept a gift, favor, loan or other item of value from any party having an interest in the parenting coordination process. During the parenting coordination process, a parent coordinator shall not solicit or otherwise attempt to procure future professional services or positions from which the parent coordinator may profit. (5)(D) A parent coordinator shall not coerce or improperly influence any party to make a decision. (5)(E) A parent coordinator shall not intentionally or knowingly misrepresent or omit any material fact, law or circumstance in the parenting coordination process. (5)(F) A parent coordinator shall not accept any engagement, provide any service or perform any act outside the role of parent coordinator that would compromise the parent coordinator’s integrity or impartiality in the parenting coordination process. (6) Conflict of interest. (6)(A) A parent coordinator shall not serve in a matter that presents a clear conflict of interest. (6)(B) A conflict of interest arises when any relationship between the parent coordinator and the participants or the subject matter of the dispute compromises or appears to compromise a parent coordinator’s impartiality. (6)(C) A parent coordinator shall disclose potential conflicts of interest to the parties and counsel of record as soon as practical after a parent coordinator becomes aware of the interest or relationship giving rise to the potential conflict. (6)(D) After appropriate disclosures, the parent coordinator may serve with the written agreement of all parties and, if court ordered, the approval of the court. However, if a conflict of interest clearly impairs a parent coordinator’s impartiality, the parent coordinator shall withdraw regardless of the expressed agreement of the parties. (6)(E) During the parenting coordination process, a parent coordinator shall not create a conflict of interest by providing any services to interested parties that are not directly related to the parenting coordination process. (6)(F) A parent coordinator may make referrals to other professionals to work with the family, but shall avoid actual or apparent conflicts of interest by referrals. No commissions, rebates, or similar remuneration shall be given or received by a parent coordinator for parenting coordination or other professional referrals. (7) Dual roles. (7)(A) A parent coordinator shall not serve in dual sequential roles. (7)(B) A parent coordinator shall not serve in multiple roles in a case that creates a professional conflict. (7)(B)(i) A mediator or custody evaluator shall be cautious about becoming a parent coordinator in the same case, even with the consent of the parties, because of the differences in the role and potential impact of the role change. (7)(B)(ii) A parent coordinator shall not become a custody evaluator either during or after the term of a parent coordinator’s involvement with the family. (7)(B)(iii) A parent coordinator shall not be appointed after serving as a therapist or consultant or serve in another mental health role to any family member. (7)(B)(iv) A parent coordinator shall not become a therapist or consultant or serve in any other mental health role to any family member, either during or after the term of the parent coordinator’s involvement. (7)(C) In some contexts (rural communities) it may not be possible to avoid multiple relationships between the parent coordinator and the family involved in parent coordination, attorneys for the case or the judge involved in the proceedings. In these cases the parent coordinator shall disclose to relevant parties any relationships that might likely lead to impaired objectivity or decreased competence and effectiveness. The parent coordinator shall inform relevant parties of the potential negative consequences of such multiple relationships and seek to minimize these consequences by either withdrawing or limiting the tasks they agree to undertake. (8) Communications and confidentiality. (8)(A) All suggestions made to the parties should occur in joint sessions. (8)(B) Bearing in mind that the role of a parent coordinator is not primarily investigative, the parent coordinator may, nevertheless, communicate with the guardian ad litem attorney, if one is appointed, but shall only communicate with any third persons (including teachers, physicians, clergy, therapists or other extended family members) with the express written permission of both parties and only to the extent necessary to obtain information that the parties agree can be most reliably obtained in that fashion. The parent coordinator may meet and/or interview the children with the express written permission of the parents or the guardian ad litem attorney (if appointed) as part of the consultation process if the parent coordinator believes that such action will aid in issuing appropriate suggestions. (8)(C) Unless otherwise agreed by the parties, all oral or written communications between the parent coordinator and the parties, other than a formal parenting plan and the quarterly status report are deemed confidential and may not be released unless agreed to by both parties. (8)(D) Nothing in this rule excuses mandatory reporting requirements pursuant to Utah law, federal law, and/or other professional reporting requirements. (9) Agreements and enforcement. (9)(A) Any formal parenting plan agreed to by the parties and drafted by the parent coordinator shall be reduced to a written document and forwarded to the parties, their attorneys, and the guardian ad litem attorney (if one is appointed). (9)(B) Parent coordinators shall notify the court of the status of the parent coordinator process, on a form provided by the court, at three month intervals or earlier upon termination.

Parenting plans themselves are an ineffectual, burdensome requirement of § 30-3-10.8 (and the subject of a separate, soon-to-come blog posting). Moreover, § 30-3-10.8 was promulgated for the express, stated purpose of requiring divorcing parents to: (a) provide for the child's physical care; (b) maintain the child's emotional stability; (c) provide for the child's changing needs as the child grows and matures in a way that minimizes the need for future modifications to the parenting plan; (d) set forth the authority and responsibilities of each parent with respect to the child consistent with the definitions outlined in this chapter; (e) minimize the child's exposure to harmful parental conflict; (f) encourage the parents, where appropriate, to meet the responsibilities to their minor children through agreements in the parenting plan rather than relying on judicial intervention; and (g) protect the best interests of the child. (See § 30-3-10.9(1) (Parenting plan -- Objectives -- Required provisions -- Dispute resolution)). Evidently, § 30-3-10.8 and the parents who follow it aren’t doing the job, so Rule 4-509 adds a third party to the equation in the form a parent coordinator who is no better equipped than the court to govern parenting disputes and is subject to a ludicrously detailed, complex laundry list of additional strictures and requirements that we will address infra. Does anyone honestly (honestly) believe that the reason we have or have persistent child custody and parent-time disputes is because we lack for those who can or will “consult with the parties and make recommendations directly to the parents about how the children’s needs can best be served?” Come on. What problem does a rule like this solve? And why must every dispute be treated as something where if we just “seek to elicit cooperation and agreement between the parents” somehow the dispute will be resolved? Consider: many parent-time disputes arise because (and I realize this may be a radical concept) a parent is in the wrong. Sometimes that parent is innocently in the wrong, other times that parent is deliberately violating the decree and/or the laws governing child custody and parent-time disputes. Either way, wrong is wrong, and there is no need nor reason to treat this wrong-headedness as something to be negotiated over. Are you refusing to have the children back at the conclusion of parent-time at 7:00 p.m. on Sunday? Hey pal, this ain’t a dispute; you’re in the wrong, and the custodial parent need not “negotiate” or “mediate” or “dialogue” on this topic. You’re in contempt of court. Case closed. If we introduce proposed Rule 4-509 into the mix it gives bull-headed miscreants and their baseless “positions” merit, as it compels the aggrieved parent to work with the parent coordinator (after all, if you go straight to court with a plain vanilla motion for order to show cause, what good’s the parent coordinator?) or he/she risks being branded “uncooperative,” “close-minded” and “part of the problem, not part of the solution.” Proposed Rule 4-509 is an example of where the maxim “Don’t just do something, stand there” should be heeded. Some “disputes” are not disputes at all, but merely antagonism dressed up in sheep’s clothing by a clever, opportunistic parent acting in bad faith. Such “disputes” do not merit advice or guidance, or revision, or clarification of their parenting plan, but instead just need good old fashioned retribution and punishment. Such “disputes” are not best addressed by suggestions, solutions, compromises or settlements. Where a parent is just plain wrong, just plain poking his/her finger in the eye of the other parent, the court, and the law, no amount of insight, training, therapeutic skill or stimulation of appropriate parental communication is warranted or effective. Punishment, however, is; and if punishment is not meted when when called for, justice is denied. Again, I know it’s a radical concept, but punishment does work, and in some cases, it’s not only appropriate, but the only effective means of stopping the misconduct. Now this is rich: “Involvement of a parent coordinator is best suited for parties who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree.” Parents who can respectfully exchange ideas and who can benefit from independent professional advice in areas where they disagree don’t need a parent coordinator in the first place! Hey you attorneys out there, have you ever seen anyone recommend a parent coordinator when the parents actually try to get along and acknowledge that reasonable minds can disagree, yet still treat each other civilly and in a spirit of cooperation? Hell no! Parent coordinators are recommended when someone (whether sincerely or just to impose financial hardship or other burdens) claims that without a “referee” the parents will never stop arguing and fighting over parent-time and/or custody. Give me a break. Huh? How was the “minimum [that’s a loaded term, if ever there was one] number of visits [i.e., no less than 4 hours of face to face joint consultation] decided? Was that just a number that felt good? Where’s the justification for making parents meet for 4 hours with the parent coordinator, no matter what? With due respect, these kinds of rules lack any basis in science or even just plain good sense. Uh-oh. Did I read that right?: “as well as other needs of the children”? In the military, we call such language mission creep. How can proposed Rule 4-509 initially proclaim the “role of the parent coordinator” to be “to serve in child custody and parent-time disputes,” yet broaden the parent coordinator’s reach to include “other needs of the children”? What if the parents have no dispute between them, but the parent coordinator feels that little Johnny could benefit from the parents taking a Love & Logic course? What if, despite an order of joint custody, the parent coordinator feels that Dad’s the better parent? What if the parent coordinator feels that the kids need time to “explore their sexuality”? You get the idea. One word comes to mind when I read subpart 3 of proposed Rule 4-509: micromanagement. Remember when the public and legislature that serves it treated divorcing parents as though their divorce did not divest them of their intelligence, their reason, and maturity? Is it too hard to recall that there was a time when a divorce decree assumed that parents would, despite the dissolution of the marriage, continue to function reasonably well as parents? Apparently so, because now a parent coordinator is needed to consult and instruct parents on a 25-point list on basic parenting covering everything from “decision-making [sic] and delivery of care” to “dates and times and method of pick-up and delivery” to “parent-time during vacations and holidays [don’t we have a statute or two or three that already covers that?]” to “transportation to and from each other’s home” to “adherence to special diet, clothing, bedtime, and recreational requirements [Aaagghhh!]” to “school attendance.” School attendance? Is that even negotiable? Why must anyone who is considered minimally competent to advise parents be a professional? Why can’t a 68-year-old mother or father of a couple of kids who grew up without becoming felons qualify? They appear to have known something about good parenting too. No offense to psychologists and their ilk, but psychology is not a hard science. One day Dr. Spock is everybody’s hero, the next he’s history’s greatest child development monster. If child development were a skill we could teach like plumbing or carpentry, based upon timeless principles upon which there is little to no argument, then I’d say leave parent coordination to the psychologists, the LCSWs and the marriage and family therapists, but we’ve got to get over this notion that the only people who know about parenting are professionals who may not even be parents themselves. Fact: you don’t need “formal training in child development” to give sound advice about parenting. Fact: you need not be forced spend hundreds of dollars an hour to get sound parenting advice when needed. Fact: running to the professionals isn’t the answer to every problem. “a working familiarity with child custody/parent-time law and the ethical issues involved in custody matters”? There’s a specific definition. And who determines who meets this ambiguous standard? Let me be blunt(er): Referring people to professionals who have all this training and knowledge isn’t going to make a noticeable difference. People referred to mediation settle not solely because they discovered their BATNA (or whatever they’re calling it these days) but often because they got tired of jumping through all the damn dispute resolution hoops the judiciary is apparently hell-bent on throwing in front of them. Good grief. Did we really need to articulate that the parent coordinator needed to be impartial? And did we need 195 words to boot to get the point across? Did we really need to articulate that the parent coordinator needed to be free of conflicts of interest? And did we need 222 words to boot to get the point across? Why are we treating parents and lawyers and the child development professionals like amoral, unethical morons? Why? Why? Great; the parent coordinator can get a guardian ad litem in on the act. Don’t forget the special master while you’re at it. And who could forget to include teachers, physicians, clergy, therapists or other extended family members? And why stop there? Perhaps the disputes between two parents should be made part of a statewide ballot initiative too. Can’t we just leave the family to deal with its own problems? Aren’t we getting, with proposed Rule 4-509, a cure worse than the supposed disease?

If a shortage of rules is what caused parenting disputes or allowed them to persist, more rules would be a fitting, salutary response to the problem. More rules, however (particularly more rules such as proposed Rule 4-509), in their haste to stamp out disputes among divorced parents (and it's crazy to suppose anything will ever do that), simply exacerbate the problems. Rather than create more rules, the simplest, most expeditious way to deal with disputes in divorce is to clear the pathway to the judge or commisioner, so that he/she hears and decides he matter in a timely manner and/or to make parents who seemingly cannot resolve parenting disputes between them pay a premium to bring such matters before the judge, and then mercilessly punish those parents who engage in "disputes" out of malice or bad faith.

I welcome your comments.

More Griping About Custody Evaluations – And a Solution

I again go on record to say what so many attorneys secretly know or at least believe, but are seemingly afraid to admit:

1) custody evaluations are often requested in divorce cases as a knee-jerk reaction without the requesting party considering whether an investigation into custody is necessary or even warranted; and

2) custody evaluations are often requested not out of any genuine desire for professional analysis of custody, but as a bad faith means of crushing the opposing party under what is for most parents the unbearable financial burden associated with paying for a custody evaluation.

Why will so few admit these facts? I imagine most would agree with at least some of my suggested answers:

1) It’s hard to argue that a custody evaluation can provide useful information potentially valuable to the court and of potential benefit to the children; so if you oppose a custody evaluation, you can easily be branded as “anti-information,” “anti-truth-seeker,” “anti-will-somebody-please-think-of-the-children” etc.

a. But the fallacy of this hasty reasoning lies in the fact that just because something may be beneficial or is beneficial does not necessarily justify the thing itself. Installing breathalyzer ignition interlocks on every single car would probably radically reduce DUIs, but that sole benefit, considered in isolation, clearly does not justify the accompanying expense and the burden. The same reasoning applies to the knee-jerk request for a custody evaluation. I can be all for truth and benefit to kids yet oppose a financially crippling means of fostering it.

2) Accusing a party of a malicious motive in requesting a custody evaluation in bad faith is similar to accusing someone of making a charitable donation solely for the tax break.

a. But it should be readily apparent that where two parents’ combined household income is $4,000 or less, it is ridiculous to request that one or both of them spring for a custody evaluator’s $2,000 to $3,000 initial retainer, let alone the total cost of a completed evaluation. Anyone who requests a custody evaluation under such circumstances is, in my book, presumptively acting in bad faith, or at least out of stupidity, and neither acting in bad faith nor out of stupidity justifies a custody evaluation.

So what do you if faced with a knee-jerk or bad-faith request for a custody evaluation? Try this:

• Retain the evaluator for a custody evaluation, and pay the initial retainer, but have the evaluator perform only a preliminary custody interview in preparation for and for presentation of findings at the statutorily-mandated mediation settlement conference (Utah Code § 30-3-39).
  

• If the evaluator’s preliminary findings/report provided at the mediation/custody interview combination settlement conference satisfies the parties and they can craft a parenting plan around it, then the parties settle the issue of custody, the evaluator’s work is done, and a full-blown custody evaluation (and its attendant costs) will not be necessary.
• If mediation does not result in settlement, then the evaluator’s preliminary findings/report are not wasted and the evaluator simply continues to conduct and complete a full-blown custody evaluation as the parties conduct discovery and prepare for trial.
  

• The parties get to mediation (as mandated by statute) early in the process when mediation is most efficient and effective.

As much as I hate the term, this proposal is a “win-win” for both parties. Each gets what he/she wants without compromising his/her position in the underlying litigation, and this arrangement has the fringe benefit of getting the parties to mediation quickly and with useful information on custody from the evaluator, without having to spend thousands of dollars and wait months on end. Neither party suffers any prejudice or wastes any time or money on the mediation/custody interview combination settlement conference because this arrangement preserves the right to have the evaluator apply the preliminary work and findings toward a full-blown custody evaluation, if mediation fails. And last, but not least, this arrangement is a great impediment to those who would request a custody evaluation out of haste or bad faith without you having to risk looking anti-custody evaluation.

I welcome your comments on this posting.

Cusody Evalutions, "Parent Coordinators," and Other Rube Goldberg Creations - I want the cream to rise

The best things and best people rise out of their separateness; I'm against a homogenized society because I want the cream to rise.

--Albert Schweitzer

Utah divorce law provides for the appointment of a custody and/or parent-time evaluator in actions where child custody and/or parent-time (i.e., visitation) is in dispute.

The procedure for appointment of a custody evaluator is provided in Utah Rule of Judicial Administration 4-903, and it is an incredibly long rule (915 words; the Gettysburg Address consists of 186 words). But you really cannot appreciate Rule 4-903’s volume and complexity without seeing for yourself:

Rule 4-903. Uniform custody evaluations.

Intent:

To establish uniform guidelines for the preparation of custody evaluations.

Applicability:

This rule shall apply to the district and juvenile courts.

Statement of the Rule:

(1) Custody evaluations shall be performed by persons with the following minimum qualifications:

(1)(A) Social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.

(1)(B) Doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.

(1)(C) Physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.

(1)(D) Marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.

(2) Every motion or stipulation for the performance of a custody evaluation shall include:

(2)(A) the name, address, and telephone number of each evaluator nominated, or the evaluator agreed upon;

(2)(B) the anticipated dates of commencement and completion of the evaluation and the estimated cost of the evaluation;

(2)(C) specific factors, if any, to be addressed in the evaluation.

(3) Every order requiring the performance of a custody evaluation shall:

(3)(A) require the parties to cooperate as requested by the evaluator;

(3)(B) restrict disclosure of the evaluation’s findings or recommendations and privileged information obtained except in the context of the subject litigation or other proceedings as deemed necessary by the court;

(3)(C) assign responsibility for payment;

(3)(D) specify dates for commencement and completion of the evaluation;

(3)(E) specify any additional factors to be addressed in the evaluation;

(3)(F) require the evaluator to provide written notice to the court, counsel and parties within five business days of completion (of information-gathering) or termination of the evaluation and, if terminated, the reason;

(3)(G) require counsel or parties to schedule a settlement conference with the court and the evaluator within 45 days of notice of completion or termination unless otherwise directed by the court so that evaluator may issue a verbal report; and

(3)(H) require that any party wanting a written custody evaluation to be prepared give written notice to the evaluator after the settlement conference.

(4) In divorce cases where custody is at issue, one evaluator may be appointed by the court to conduct an impartial and objective assessment of the parties and submit a written report to the court. When one of the prospective custodians resides outside of the jurisdiction of the courttwo individual evaluators may be appointed. In cases in which two evaluators are appointed, the court will designate a primary evaluator. The evaluators must confer prior to the commencement of the evaluation to establish appropriate guidelines and criteria for the evaluation and shall submit only one joint report to the court.

(5) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished by assessing the prospective custodians’ capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:

(5)(A) the child's preference;

(5)(B) the benefit of keeping siblings together;

(5)(C) the relative strength of the child's bond with one or both of the prospective custodians;

(5)(D) the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted;

(5)(E) factors relating to the prospective custodians' character or status or their capacity or willingness to function as parents, including:

(5)(E)(i) moral character and emotional stability;

(5)(E)(ii) duration and depth of desire for custody;

(5)(E)(iii) ability to provide personal rather than surrogate care;

(5)(E)(iv) significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;

(5)(E)(v) reasons for having relinquished custody in the past;

(5)(E)(vi) religious compatibility with the child;

(5)(E)(vii) kinship, including in extraordinary circumstances stepparent status;

(5)(E)(viii) financial condition; and

(5)(E)(ix) evidence of abuse of the subject child, another child, or spouse; and

(5)(F) any other factors deemed important by the evaluator, the parties, or the court.

(6) In cases in which specific areas of concern exist such as domestic violence, sexual abuse, substance abuse, mental illness, and the evaluator does not possess specialized training or experience in the area(s) of concern, the evaluator shall consult with those having specialized training or experience. The assessment shall take into consideration the potential danger posed to the child’s custodian and the child(ren).

(7) In cases in which psychological testing is employed as a component of the evaluation, it shall be conducted by a licensed psychologist who is trained in the use of the tests administered, and adheres to the ethical standards for the use and interpretation of psychological tests in the jurisdiction in which he or she is licensed to practice. If psychological testing is conducted with adults and/or children, it shall be done with knowledge of the limits of the testing and should be viewed within the context of information gained from clinical interviews and other available data. Conclusions drawn from psychological testing should take into account the inherent stresses associated with divorce and custody disputes.

Advisory Committee Note. The qualifications enumerated in this rule are required for the performance of a custody evaluation. However, if the qualifications are met, a practitioner from another state with a different title will not be barred from performing a custody evaluation.

Not content with Rule 4-903, however, the Utah State Legislature considered promulgating a statute governing custody evaluations—not as a replacement of Rule 4-903, but as a complement to it. The additional regulations governing custody evaluations were proposed in House Bill 169.

What follows in the left column is the text of H.B. 169, and in the right column are my comments.

Text of the bill

My comments

CHAPTER 10. CHILD CUSTODY EVALUATION ACT 49 30-10-101. Title. 50 This chapter is known as the "Child Custody Evaluation Act." 51 Section 2. Section 30-10-102 is enacted to read: 52 30-10-102. Definitions. 53 As used in this chapter: 54 (1) "Custody evaluation" means a process where information is gathered by a custody 55 evaluator from parties to a divorce, separation, or custody proceeding which is used to provide 56 the court with information it can use to make decisions regarding custody and parenting time 57 arrangements that are in the child's best interest. 58 (2) "Custody evaluator" means a person who performs custody evaluations. 59 (3) "Party" means either the petitioner or respondent, or their respective attorneys, in an 60 action for separation, divorce, or custody of a minor child. 61 Section 3. Section 30-10-103 is enacted to read: 62 30-10-103. Qualifications and training. 63 (1) Subject to meeting the educational and training requirements in Subsections (2) 64 through (5), the following persons may conduct custody evaluations in response to a request 65 from a court: 66 (a) social workers with the designation of Licensed Clinical Social Worker or 67 equivalent license by the state in which they practice; 68 (b) doctoral level psychologists who are licensed by the state in which they practice; 69 (c) physicians who are board certified in psychiatry and are licensed by the state in 70 which they practice; or 71 (d) marriage and family therapists who hold the designation of Licensed Marriage and 72 Family Therapist or equivalent license by the state in which they practice. 73 (2) Custody evaluators shall have a minimum of a master's degree in a mental health 74 field that includes: 75 (a) formal education and training in child development, child and adult 76 psychopathology, interviewing techniques, and family systems; and 77 (b) by formal education or by supervised work experience, advanced knowledge of the 78 complexities of the divorce or separation process, a working knowledge of the legal issues in 79 divorce or separation, and an understanding of the legal, social, familial, and cultural issues 80 involved in custody and access. 81 (3) Custody evaluators shall have initial training totaling a minimum of 40 hours in the 82 following areas, no more than five of which may be in any one area: 83 (a) the psychological and developmental needs of children, especially as those needs 84 relate to decisions about child custody and access; 85 (b) family dynamics, including parent-child relationships, blended families, and 86 extended family relationships; 87 (c) the significance of culture and religion in the lives of parties; 88 (d) safety issues that may arise during the evaluation process and their potential effects 89 on all participants in the evaluation; 90 (e) when and how to interview or assess adults, infants, and children; 91 (f) how to gather information from collateral sources; 92 (g) how to collect and assess relevant data and recognize the limits of the reliability 93 and validity of different sources of data; 94 (h) how to address issues such as general mental health, medication use, and learning 95 or physical disabilities; 96 (i) how to apply comparable interview, assessment, and testing procedures that meet 97 generally accepted forensic standards to all parties; 98 (j) when to consult with or involve additional experts or other appropriate persons; 99 (k) how to inform litigants, children, other participants, and collateral sources, of the 100 purpose, nature, and method of the evaluation and the limits of confidentiality; 101 (l) how to assess parenting capacity and co-parenting capacity and to construct 102 effective parenting and co-parenting plans; 103 (m) the legal context within which child custody and access issues are decided and 104 additional legal and ethical standards to consider when serving as a child custody evaluator; 105 (n) how to make the relevant distinctions among the roles of evaluator, mediator, 106 therapist, parent coordinator, and co-parenting counselor; 107 (o) how to write reports for the courts to which they will be presented; 108 (p) how to prepare for and give testimony at deposition or at trial; and 109 (q) how to maintain professional neutrality and objectivity when conducting child 110 custody evaluations. 111 (4) At least 24 hours of initial training on the effects of domestic violence, and another 112 16 hours on issues of separation, divorce, substance abuse, child alienation, child mistreatment 113 including child sexual abuse, the effects of relocation, sexual orientation issues, and 114 inter-parental conflict on the psychological and developmental needs of children, adolescents, 115 and adults shall be completed. 116 (5) An additional 20 hours of specialized training shall include managing issues related 117 to: 118 (a) allegations of child sexual abuse; 119 (b) children's resistance to spending time with a parent or parent figure; 120 (c) allegations of attempts to alienate children from a parent, parent figure, or 121 significant other; 122 (d) children's best interests in the context of relocation requests by one parent; 123 (e) substance abuse; and 124 (f) child abuse, domestic violence, and safety plans for both parents and children. 125 (6) Continuing education requirements for custody evaluators shall be as follows: 126 (a) 16 hours covering the areas of Subsection (3), no more than two hours in any one 127 area; and 128 (b) 16 hours covering the areas of Subsections (4) and (5), at least eight of which shall 129 be on the effects of domestic violence. 130 Section 4. Section 30-10-104 is enacted to read: 131 30-10-104. Court responsibilities. 132 (1) The Administrative Office of the Courts shall maintain an approved list of custody 133 evaluators who have met the qualifications in Section 30-10-103 . 134 (2) If the court determines that a custody evaluator is needed in an action, the court 135 shall appoint an evaluator from a list of court-approved evaluators. Evaluators shall be 136 selected at random to ensure impartiality. 137 (3) A child custody evaluator appointed in accordance with this chapter may not also 138 be appointed as a special master in accordance with URCP 53 or a parenting coordinator 139 appointed in accordance with Title 30, Chapter 11, Parent Coordination Act. 140 (4) All custody evaluations shall be conducted in accordance with Code of Judicial 141 Administration, Rule 4-903. 142 Section 5. Section 30-10-105 is enacted to read: 143 30-10-105. Custody evaluator responsibilities. 144 (1) A custody evaluator shall: 145 (a) accept cases referred by the court without regard to the financial situation of the 146 parties; 147 (b) review with each party the custody evaluator's policies and procedures for 148 conducting an evaluation; 149 (c) provide the court and each party with copies of all written documentation and 150 reports; and 151 (d) note in the final report provided to the court and the parties, any missing or 152 incomplete information. 153 (2) As a requirement to remain on the court-approved list of custody evaluators, an 154 evaluator shall agree to provide a minimum of two custody evaluations annually without 155 charge. 156 Section 6. Section 30-10-106 is enacted to read: 157 30-10-106. Fees and costs. 158 (1) A child custody evaluator shall provide to the parties and the court an itemized 159 accounting of all amounts charged. 160 (2) The court shall consider the financial situation of both parties in determining 161 payment for the custody evaluator's services, and make a final determination on the record of 162 the amounts each party is responsible for paying. 163 (3) The Administrative Office of the Courts may create a sliding scale for payment to 164 custody evaluators based upon the income of the respective parties. 165 Section 7. Section 30-11-101 is enacted to read: 166 CHAPTER 11. PARENT COORDINATION ACT 167 30-11-101. Title. 168 This chapter shall be known as the "Parent Coordination Act." 169 Section 8. Section 30-11-102 is enacted to read: 170 30-11-102. Definitions. 171 As used in this chapter: 172 (1) "Parent coordinator" means a person appointed by the court to minimize trauma to 173 the children of divorce by resolving custody-related disputes between the parents within the 174 scope of the court's order. 175 (2) "Party" means the petitioner, respondent, or their respective attorneys in an action 176 for separation, divorce, or child custody. 177 Section 9. Section 30-11-103 is enacted to read: 178 30-11-103. Qualifications and training. 179 (1) Subject to meeting the educational and training requirements in Subsection (2), the 180 following persons may be appointed by a court as a parent coordinator: 181 (a) a doctoral level psychologist who is licensed by the state in which they practice; 182 (b) a legal professional who is licensed by the state in which they practice; and 183 (c) a certified family mediator with a master's degree in a mental health field. 184 (2) Parent coordinators shall have: 185 (a) formal training or advanced knowledge in child development, child and adult 186 psychopathology, interviewing techniques, and family systems; 187 (b) advanced knowledge of the complexities of the divorce or separation process, a 188 working knowledge of the legal issues in divorce or separation, and an understanding of the 189 legal, social, familial, and cultural issues involved in a proceeding relating to child custody; 190 (c) advanced experience and knowledge in family mediation, and, preferably, be a 191 certified family mediator according to court rule; 192 (d) advanced experience with high conflict or litigating parents; 193 (e) a minimum of 40 hours of initial training which includes training in parent 194 coordination, family dynamics in separation and divorce, domestic violence, child 195 mistreatment, and court specific parenting procedures; and 196 (f) an additional 20 hours of specialized training which includes maintenance of 197 professional competence in the parenting coordination process. 198 Section 10. Section 30-11-104 is enacted to read: 199 30-11-104. Court responsibilities. 200 (1) The Administrative Office of the Courts shall maintain an approved list of parent 201 coordinators who have met the qualifications in this chapter. 202 (2) If the court determines that a parent coordinator is needed, the court shall appoint a 203 coordinator from the list maintained by the Administrative Office of the Courts. 204 (3) A parent coordinator may decline appointment if the case is beyond the parent 205 coordinator's skill or expertise. 206 (4) The court order appointing a parent coordinator shall: 207 (a) require the coordinator to work with the parties in order to create workable 208 solutions to disputes that will, in time, lessen the need for a parent coordinator; 209 (b) allow the coordinator to make recommendations and decisions necessary to allow 210 as little disruption in the children's home and routine as possible, yet carry out specified court 211 orders regarding parent-time; and 212 (c) provide a term of service for the parent coordinator, including start and end dates. 213 (5) Upon the expiration of the parent coordinator's term of service, one or both parents 214 may request the coordinator continue for additional time. The court shall determine whether 215 the coordinator may continue and set a specific length of time if the decision is made to 216 continue the coordinator. 217 (6) If one parent requests additional time and the other parent declines, the court shall 218 determine the matter. 219 Section 11. Section 30-11-105 is enacted to read: 220 30-11-105. Parent coordinator responsibilities. 221 (1) The parent coordinator's primary role is to assist the parties impartially to work out 222 disagreements regarding their children to minimize conflict. 223 (2) The parent coordinator shall report suspected child abuse or neglect to the proper 224 agency. 225 (3) The parent coordinator shall communicate decisions in a timely manner in person 226 or by fax, e-mail, or telephone. In the event decisions are provided orally, a written version 227 shall follow in a timely manner. 228 (4) The parent coordinator shall discuss with both parties all policies, procedures, and 229 standards for decision-making. In addition, each party shall be given a copy of the court's order 230 to the coordinator. 231 (5) The parent coordinator may not serve in multiple roles in the same case. 232 (6) The parent coordinator shall make every effort to avoid conflicts of interest and 233 shall disclose any conflicts to the court and all parties involved in the case. 234 (7) The parent coordinator shall provide a report to the court and all parties at intervals 235 determined by the court, and a final report upon the expiration of the coordinator's term. 236 Section 12. Section 30-11-106 is enacted to read: 237 30-11-106. Fees and costs. 238 (1) The parent coordinator shall provide to the court and the parties an itemized 239 accounting of all amounts charged. 240 (2) The court shall make an initial determination of each party's share of the parent 241 coordinator's fees. It shall consider the financial situation of both parties in determining 242 payment for the parent coordinator's services. Upon the termination of the parent coordinator's 243 services, the court shall make a final determination on the record of any outstanding amounts 244 each party is responsible for paying. 245 (3) The Administrative Office of the Courts may create a sliding scale for payment to 246 parent coordinators based upon the income of the respective parties.

THIS IS TOO MUCH; WAY TOO MUCH. IF THIS IS WHAT’S TRULY NECESSARY FOR EVALUATING AND DETERMINING CUSTODY, WHY NOT TAKE THE SAME APPROACH WITH MARITAL PROPERTY AND DEBT? LET’S CREATE PROVISIONS FOR APPOINTMENTS OF “DIVORCE AUDITORS” AND “FORENSIC ACCOUNTANTS” TO ENSURE THAT PRECIOUS MARITAL ASSETS ARE NOT WASTED OR INEQUITABLY DISPOSED OF. I MEAN, HOW MANY OF THE CURRENT POOL OF CUSTODY EVALUATORS WOULD MEET THIS STANDARD NOW? WHAT WILL IT COST TO GET AND KEEP ALL THE CERTIFICATIONS PROPOSED? WHERE WOULD THE TRAINING COME FROM? DOES THE TRAINING EVEN EXIST YET? WHO WOULD WANT TO SPEND THE TIME AND MONEY NEEDED TO QUALIFY AS A CUSTODY EVALUATOR?, AND IF HE/SHE DID, WOULD HE/SHE BE ABLE TO RECOUP THOSE COSTS THROUGH CONDUCTING ENOUGH CUSTODY EVALUATIONS TO BREAK EVEN AT BEST? GRANTED, AN EVALUATOR WITH THIS LEVEL OF SKILL SHOULD BE HIGHLY QUALIFIED TO CONDUCT AN EVALUATION, BUT YOU’RE NARROWING THE POOL TO THOSE WHO WILL HAVE TO SPECIALIZE AS CUSTODY EVALUATORS, THUS SHRIKNING THE COMEPTITIVE FIELD TO TWO OR THREE EVALUATORS, WHO CAN THEN CHARGE WHATEVER THE MARKET WILL BEAR. SECONDLY, THIS NEW SECTION OF CODE APPEARS TO MAKE AN IMPLICIT ENDORSEMENT OF CUSTODY EVALUATIONS. CUSTODY EVALUATIONS ARE OFTEN USED TO PUT FINANCIAL PRESSURE ON A PARTY, I.E., THEY ARE NOT SOUGHT TO GET AT THE FACTS, THEY ARE SOUGHT TO SPEND A PARTY INTO SUBMISSION. THIRD, IF THIS BILL PASSES, NOW NOT ONLY WILL DIVORCING COUPLES AND PARENTAGE ACTION PARTIES HAVE TO PAY FOR LAWYERS, DIVORCE ORIENTATION COURSES (PLURAL) AND MEDIATORS, THEY WILL HAVE TO DEAL WITH AN ENTIRELY NEW BUREAUCRACY AND LEVEL OF COMPLEXITY WITH CUSTODY EVALUATORS, THE ASSOCIATED COST. COME ON, HOW OFTEN DOES A COURT NOT “DETERMINE THAT A CUSTODY EVALUATOR IS NEEDED?” IF A PARTY REQUESTS A CUSTODY EVALUATION, THE COURT WILL ORDER ONE NINE TIMES OR MORE OUT OF TEN BECAUSE (AND I HATE TO SAY IT) IT'S JUST TOO INVITING TO PASS THIS RESPONSIBILITY TO SOMEONE ELSE AND TOO TEMPTING TO DO SO IN THE NAME OF ENTRUSTING "AN EXPERT" WITH IT. AND AS I HAVE STATED BEFORE, TOO MANY PEOPLE SEEK CUSTODY EVALUATIONS IN BAD FAITH, SOLELY TO MAKE THE OPPOSING PARTY SPEND THOUSANDS OF DOLLARS, WAIT MONTHS FOR THE EVALUATION TO BE COMPLETED, AND CAUSE THE OPPOSING PARTY TO SETTLE OUT OF POVERTY AND FRUSTRATION. GIVEN THESE, ER, GIVENS, HOW OFTEN WILL A CUSTODY EVALUATION BE REQUESTED IF THEY BECOME FREE (THAT’S A RHETORICAL QUESTION)? BOO. HISS. AND NOW IT APPEARS THAT THE LEGISLATURE IS GOING TO ADD YET ANOTHER LAYER OF COMPLEXITY TO DIVORCE CASES BY IMPLICITLY ENDORSING THE APPOINTMENT OF SPECIAL MASTERS. BOO. AH, SO THAT’S HOW YOU ADDRESS THE COSTS OF BEING QUALIFIED TO BE A CUSTODY EVALUATOR—AN UNFUNDED MANDATE. ARE YOU SERIOUS? ISN’T THERE A CONSTITUTIONAL PROSCRIPTION AGAINST INVOLUNTARY SERVITUDE? AND LOOK AT THE REST OF THE NEW RED TAPE THE POOR PARTIES AND THE EVALUATOR HAVE TO GO THROUGH JUST TO GET STARTED! HELL’S BELLS! SO NOW YOU CAN’T BE AN EVALUATOR UNLESS YOU SPEND EVERY OTHER WAKING HOUR AND EVERY OTHER DOLLAR GETTING AND STAYING QUALIFIED; THEN, AS A REQUIREMENT OF BEING A CUSTODY EVALUATOR, YOU MUST GIVE YOUR SERVICES AWAY FOR FREE TWICE A YEAR! THIS IS CRAZY! THIS IS UNJUST. THIS IS UNCONSTITUTIONAL. DO YOU REALIZE THAT YOU’RE DRIVING DOWN THE NUMBER OF CUSTODY EVALUATORS TO NEXT TO NONE WITH REQUIREMENTS LIKE THIS? AND WHAT KIND OF QUALITY WILL YOU GET WHEN YOU MAKE GETTIGN AND STAYING QUALIFIED SO PUNITIVE AND CONFISCATORY? I HAVEN’T READ THE REST OF THE PROPOSED BILL YET, BUT GIVEN WHAT I’VE SEEN SO FAR, I’M GUESSING THERE’S GOING TO BE A CAP ON WHAT THE EVALUATORS CAN CHARGE TOO. OH, AND THERE IT IS, JUST AS EXPECTED. THIS IS SOCIALIZED LITIGATION AND IT WILL BE DISASTROUS. RATHER THAN ADD COMPLEXITY AND BUREAUCRACY TO CUSTODY EVALUATIONS, YOU SHOULD HAVE WORKED ON MAKING THE PROCESS SIMPLER, FASTER, AND LESS COSTLY. THERE IS, AS YET IN MY READING OF THIS BILL, ABSOLUTELY NOTHING GOOD. GOOD GRIEF! ANOTHER INTERMEDDLER IN THE DIVORCE PROCESS GIVEN THE LEGISLATURE’S STAMP OF APPROVAL? ONCE IT’S IN THE CODE, YOU KNOW IT WILL BECOME COMMONPLACE IN EVERY DIVORCE. AFTER ALL, IT’S IN THE CODE! HEY, RATHER THAN OUTSOURCING EVERYTHING TO NON-JUDGES, WHY NOT JUST INCREASE THE NUMBER OF JUDGES AND COMMISSIONERS AND TRUST JUDGES AND COMMISSIONERS TO DO THEIR JOB WITHOUT NEEDING (BY MY COUNT NOW) THREE OR FOUR OTHER SUPPORT STAFF (I.E., GUARDIAN AD LITEM, CUSTODY EVALUATOR, SPECIAL MASTER, PARENT COORDINATOR? THIS IS IRRESPONSIBLE AND SHOWS AN UTTER LACK OF CREATIVITY OR FAITH IN THE JUDGMENT OF JUDGES AND COMMISSIONERS. LET ME GUESS, HUNDREDS OF HOURS OF TRAINING WILL BE REQUIRED TO BE A "PARENT COORDINATOR"? OH, MY MISTAKE. IT’S A MERE 80 HOURS. MMM HMM. JUST AS I EXPECTED. AND WHO WILL PROVIDE THIS TRAINING? AND SURELY THE FEES CHARGED BY THE COORDINATOR WILL NOT BE UNDER THE CONTROL OF THE COORDINATOR, BUT ON A MEANS-TESTING BASIS SO THAT THE POORER YOU ARE THE MORE INCENTIVE YOU HAVE TO REQUEST IT. SO THE POOR SAP WHO BECOMES AN EVALUATOR, OR SPECIAL MASTER, OR PARENTING COORDINATOR GETS ALL HIS/HER TRAINING, THEN IS TOLD WHAT HE OR SHE CAN CHARGE BY A COURT THAT WILL HAVE EVERY INCENTIVE TO ORDER A CUSTODY EVALUATION AND THUS SET A FEE AT WHAT THE COURT FEELS THE OTHER PARTY CAN PAY, NOT SHOULD PAY. DO YOU REALIZE THAT THIS KIND OF SYSTEM DISCOURAGES EXCELLENCE AND ENCOURAGES PEOPLE SERVING IN THESE ROLES TO DO AS LITTLE AS POSSIBLE TO GET QUALIFIED AND TO PERFORM THE SERVICE? COULD THIS BE READ AND APPLIED TO MEAN THAT A PARENTING COORDINATOR MAY BE STUCK IN THIS JOB IF THE COURT SO ORDERS, EVEN IF THE COORDINATOR DOESN’T WANT TO KEEP DOING THE JOB (FOR PEANUTS, ON THAT SILLY SLIDING SCALE)? DOES THE PARENT COORDINATOR SET HIS OWN FEES, OR DOES THE COURT DETERMINE THEM AFTER THE SERVICES ARE RENDERED?

Proposals such as H.B. 169 are so larded with requisite qualifications as to disqualify everyone and drive otherwise talented people out of the custody evaluation business. To top it off with an excellence-repelling “sliding scale” fee structure makes H.B. 169 a good example of extremely poor, extremely ineffective legislation.

Mercifully, H.B. 169 did not pass, but anyone who follows the doings of the legislature and Judicial Council must concede that the subjects covered in H.B. 169 will soon rear their collective heads again. May I suggest an alternative to additional regulation in this area?

The thinking behind H.B. 169 is well-intentioned for the most-part, but wrongheaded. The point should not be to make it harder to become a custody evaluator, but easier. Let the cream rise by letting virtually anyone who’s not an obvious shyster be a custody evaluator. Impose some minimal qualifications (no shysters), but then let the market thin the herd. Those in the pool of evaluators who have poor to no qualifications, make bad judgments, and/or generally do a lousy job will soon be exposed by the consumers of their services, word will get out, and the market will weed them out, eliminating the bad and rewarding the good evaluators. Minimal regulation at the administrative/legislative level will spur competition, keep costs down, reward innovation and result in the best method(s) for custody evaluations being conducted to be self-evident.