Lying To A Parental Responsibilities Evaluator Is Crime in Colorado
Don’t lie! That means no lying to the custody evaluator (or any other court-appointed experts, for that matter). And don’t submit false or forged documents. Not only will it hurt your divorce or parenting case, but a wrongdoer may even face criminal charges, as a Colorado woman recently found out.
What is a Child Custody Evaluator?
A child custody evaluator is a parenting professional conducts a child custody evaluation – i.e. investigates the parents and children, and makes recommendations to the judge on child custody and visitation. A court may direct a custody evaluation when parents are involved in a child custody dispute which has significant or difficult issues, or there are allegations of substance abuse, domestic violence, mental health issues, etc.
Types of Child Custody Evaluators In Colorado
The three most common types of custody evaluators in Colorado are:
- Parental Responsibilities Evaluator (PRE),
- Child & Family Investigator (CFI), or
- Child’s Legal Representative (CLR) (formerly known as a GAL, or Guardian Ad Litem).
For the sake of simplicity, this post will refer to them collectively as “child custody evaluators”, even though this is a bit of an over-simplification. They all perform what most people think of as custody evaluations.
Steps in a Child Custody Evaluation
Custody evaluators all serve the same basic function – they investigate the parenting situation and then make recommendations to the court. The investigation may include the following fact-gathering steps:
- Interviewing the parents
- Interviewing the children (if they are old enough)
- Observing parent/children interaction
- Receiving input from third party sources (family members, teachers, therapists, etc)
- Reviewing documents provided by the parents or third parties.
For more information about the role of CFIs and other parenting experts in a custody case, see our Child Custody Evaluator article in the Colorado Family Law Guide.
Conviction For False Document To Child & Family Investigator
A Colorado mother recently learned to her detriment the consequences of providing the CFI with a false document. The Colorado Supreme Court just upheld the conviction of a mother involved in a divorce case who was fighting her then-husband over custody of their sons. Hoggard.1Hoggard v People, 2020 CO 54.
Forged Email Provided To Custody Evaluator
The mother had provided the child & family investigator with an email from the father to which she had made alterations, including adding a threat purporting to be from her husband: “I don’t like you and I’ll make sure with all my power to destroy you.” The CFI forwarded the email to the father for comment – the father saw the alterations, and provided the child and family investigator with the genuine version of the email he had sent.
Usually that’s as far as things go – false statements made to a child & family investigator during a custody or divorce case hurt the parent in that particular case, but there are rarely criminal consequences (see our recent blog “Witness Charged for Lying in Divorce Case” for a discussion of the reality of how rare criminal prosecutions are for perjury).
But this father was not only upset enough to go to the police, but law enforcement actually cared enough to investigate (too often non-violent crimes one spouse commits against the other, from forging signatures to accessing emails, even though they are real crimes, are treated as “domestic disputes” for the family law court to resolve).
The mother was charged with forgery, and attempting to influence a public servant (i.e. a child & family investigator), in violation of C.R.S. 18-8-306, a class 4 felony. The mother’s defense was that she did not know how the alterations occurred, and she was convicted. On appeal, the primary issue was a technical legal one – whether the jury was properly instructed as to her intent to “alter or affect the public servant’s decision, vote, opinion, or action concerning any matter.”
I’m not a criminal attorney, so the rest of the published opinion discussing jury instructions, harmless error and the like are of little interest to those of us in family law. No word on the sentence, but regardless of what criminal punishment she received, it is hardly a stretch to presume that this crime absolutely killed the mother’s chances in the custody fight in the eyes of the child and family investigator.
And the relevant takeaway for family law is that someone was prosecuted for lying to a parenting expert in a family law case – a rare enough event (the prosecution, not the misconduct) that it’s noteworthy. I’ve honestly never seen someone prosecuted for lying to a CFI or a parental responsibilities evaluator, even though I’ve had cases where provable lies were said.
Parental Responsibilities Evaluator Is A “Public Servant”
Since it was not raised on appeal, it appears there was no doubt in the minds of anyone involved in the case that a court-appointed child & family investigator is a “public servant.” This is not an issue I had ever given much thought to, after all, custody evaluators are not employed by the court, but instead are in the private sector, and except in rare cases where the state pays an expert for an indigent party, are paid by the litigants themselves. However, they are appointed by the court, and report back to the judge with their findings, so it makes sense that a child and family investigator would be a public servant.
As the Hoggard case did not discuss this issue, I did a little digging in the criminal statutes (unfamiliar territory for a family law attorney), and found the definition of public servant in C.R.S. 18-1-901(3)(o), the statute which contains definitions generally applicable to criminal cases. Per that provision:
“‘Public servant’ means any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses.
Research has uncovered no cases applying this definition to court-appointed custody evaluators in Colorado, other than Hoggard, but a PRE, CFI or child’s legal representative is performing the custody evaluation for the judge, and would almost certainly meet the definition of a consultant at a minimum. So don’t give the child and family investigator false documents, don’t lie to the parental responsibilities evaluator, and don’t try to bribe the child’s legal representative.
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