CJD 04-08 Public Comment 2023
Taken from here... https://www.courts.state.co.us/Administration/Section.cfm?Section=jp3domprog
The Colorado State Court Administrator’s Office has opened a 30-day public comment period for proposed changes to Chief Justice Directive 04-08. Interested parties may review the proposed revisions by clicking here and may comment on the proposed revisions by completing this survey. The comment period will close on March 5, 2023.
REQUEST - Respond to the survey with your own inputs. For brevity, simply respond with "I agree with Jordan Scott". Due March 5, 2023.
The CJD 04-08 workgroup has been working on proposed edits to the CJD since March 2022. The workgroup is requesting public feedback. Please email CFIprogram@judicial.state.co.us with any questions. Thank you.
Jordan Scott's Response
3.Comments to Section III Maximum Fees- Private Pay
Increasing CFI fees without any analysis of costs is not helpful to the parties or families. In my complaint, the CFI did not log any hours. The SCAOs finding was that per Standard 16, billing statements must list all services performed, detailing the time spent and charges incurred. This was not done. How many other CFIs violate this and treat the max fees as just easy money? Increasing the max fee without understanding utilization of those fees is not good stewardship.
I am glad to see the credit card fees included in the max. My complaint about the CFI charging a 5% fee above max for credit card processing was not answered by the SCAO. Instead, it was recommended that the Standing Committee on Family Issues review this scenario and clarify. Based on the review and edits, it is apparent that fees above the Max are unallowable and the SCAO should review all CFI billing immediately.
4.Comments to Section III Maximum Fees- Testimony and Preparation Time
No fees should be subject to reallocation at hearing. This additional fee already creates a bias in testimony and incentivizes the CFI to support one party in order to receive extra money.
5.Comments to Section III Maximum Fees- Mixed Pay Cases
Private pay should match state pay. There should not be “mixed” pay cases. That fact there is a difference creates a bias when the hourly rate is different and incentivizes attorneys of “wealthy” families to nominate the court to appoint private CFIs at higher, arbitrary rates to gain favor.
6.Comments to Section V Complaint Section
In my case, I filed a complaint with the Judge through motions that were ignored. I then filed a complaint through the SCAO, twice. The judge told the SCAO to delay the investigation. Followed by additional motions and objections, nothing was done. In cross-examination, misconduct was pointed out again. The judge literally said he doesn’t want to hear about it. In the end, he said the CFI “did a good job” when she clearly violated multiple CJD 04-08 standards. Multiple, as confirmed by the SCAOs investigation. To say that parties shall request findings from the court would require the court to hold their judges and CFIs accountable to the standards. Per this update, the SCAO would not have even investigated the CFI and would not have found any misconduct, to which there was.
The only way this update makes sense is if the judges lose immunity for lawsuits, as their misconduct now allows CFI misconduct to thrive and if the courts pay the CFIs directly. Does this rule assign financial liability of CFI misconduct to the judges? I’d hope so but suspect they don’t feel the same. If the SCAO is overwhelmed by complaints and understaffed to manage complaint workload, the SCAO should enforce the standards and reduce the “approved CFI list”, not hide complaints. This change hides complaints, like the sexual harassment complaints that the court employees are afraid to file for fear of retaliation. Now, the SCAO expects the parties to file their complaint with the judges who are complicit to the misconduct, and expect no retaliation to those parties?
This whole section needs rework and is unacceptable by any complaint process standard. No other legitimate complaint process includes getting “approval” by a party of the matter prior to the complaint being investigated.
I’d like to see a public list of complaints against the CFIs, the nature of the complaint, and the actions the SCAO took. My complaints took nearly a year to receive a conclusion from the SCAO and the results were less than spectacular. The investigation was unsatisfactory too, as there was evidence they didn’t even look at for what appears to be the SCAOs attempt to reduce the severity of the findings in the report. DORAs investigation was even less investigative. The ineffective investigation processes are not helpful in the reduction of complaints. I’d recommend increasing the thoroughness of those investigations and increasing the fines and penalties of violating the standards instead.
7.Comments to Section VI Sanctions section
In my case, there were violations found of 4 standards. While I feel the investigation should have found more, like the credit card fees, ex parte communications, and such, 4 were found. There was no sanction or penalty. Merely warned. That does not lead to suitable behavior.
If the SCAOs decisions are not appealable, but the process was flawed and ineffective, the roster of CFIs will never be cleaned up and function within ethical behaviors. Who holds the SCAO accountable? The refunding of fees is an example. The SCAO wants no part of it, but the judge who says the CFI did a good job wants no part of the SCAO investigation report. Who protects the families these CFIs abuse?
A zero-tolerance approach to violating CJD standards would be best for “investigative arms” of the court, specifically in cases where children are affected. Unless the court wants to maintain the position of corruption and misconduct that it is known for.
8.Comments to Standard 1
There is nothing defining “the best interests of the child/ren”. As an investigative arm of the court, I would expect more formal requirements and definitions. As this standard is written, the CFIs sole purpose is to allow hearsay into family court hearings.
9.Comments to Standard 2
Why would a CFI not be required to maintain objectivity? That does not lead to a fair or impartial system of justice and goes against the mission of the court. A court appointed CFI, is an investigative arm of the court, not of the parties. Therefore, the only appropriate response to objectivity is that they should be objective in their role.
One strong example in my complaint was an email from opposing counsel to the CFI, that I did not receive a copy of until after the report was submitted. In that email, the attorney asked, “Has Jordan Scott paid your retainer yet?” and then included nearly 2 pages of content and accusations along with 9 lengthy attachments. The CFI sent a separate email stating “[Evil attorney] asked me if Jordan has paid me yet. No, Jordan has not. Thank you, [evil attorney] for your email.” No mention of the 2 pages of content or attachments. Not disclosing communication is demonstrative of a conflict of interest and subjective opinion.
Personally, I have yet to find a single court employee or attorney who is able to define or identify a conflict of interest. As an investigator, there are many examples of conflict of interest the court could use, maybe consider using private investigator guidelines. Generally, providing facts to the court should be easy to maintain objectivity. The problem is that CFIs are being used to provide hearsay to the courts.
A conflict of interest can be exposed during the case. A “timely” objection may not be possible. I was not made aware of the misconduct until after I received a copy of the case file from the CFI. The SCAO even stated “no compelling evidence of ex parte communication with the other party”
10.Comments to Standard 3
This addition is ridiculous… “If permission to depose is requested, the court may grant with appropriate additional compensation to the CFI.” This does not identify applicability to the Max Fee requirement and any discovery of misconduct of a CFI should not be limited by the approval of the judge who appointed the CFI. This is how organizations create a culture of retaliation and corruption.
11.Comments to Standard 4
How is it that the CFI is unable to make referrals “unless a party makes a written request” ? This is an incredibly stupid rule that will lead CFIs to conversations like:
CFI: Hey, I want to refer you to a [insert friend] for whatever services work in our best interests.
Party: Ok, so why don’t you?
CFI: Because there’s this rule that will only let me do that if you request it in writing.
Party: Ok, I’ll send you an email with the request.
Also, the CFIs are appointed by referral from the attorneys. The same with PREs. I actually got an attorney to file this as part of a response in an active case…
“Further, if the Court were to rely on Petitioner’s logic that a mere use of an expert on more than one case in the past created a “financial relationship” which would render a conflict of interest then there would be no PRE’s that attorneys could use more than one time in their cases and, in this particular instance, most of the PRE’s on the state roster who have current availability would be disqualified as the undersigned has used many different PRE’s from the state roster over the course of her practice.”
This attorney has 3 active cases with the PRE in question, which was not disclosed until the appointment was objective to. The PRE in this case has many more undisclosed cases with the parties and counsel of the case. Those 3 previously undisclosed cases could result in payment of nearly $100k to that PRE. The irony is that the attorney fails to see the conflict of interest. There are likely a hundred cases.
While PREs are not CFIs, their roles and responsibilities are very similar to investigative arms of the court and the fact is that there is not a revolving or random assignment, each case is assigned by referral. This is applicable in the context to Standard 1 and 2 as well.
12.Comments to Standard 5
Has there been any successful instance of a CFI becoming a PC/DM after the CFI appointment ends with complements from both parties? I would doubt it. A CFI should not become a PC or DM. Now, the court should not have any control over things the parties agree to, it should state that instead. Something like:
The CFI should not move to the role of parenting coordinator, decision-maker or arbitrator after termination of their appointment. If the parties, with written and informed consent, agree, the CFI may serve or accepts an appointment as a PC, DM, or arbitrator. The CFI shall not accept further CFI appointments or perform supplemental investigations upon doing so.
13.Comments to Standard 6
The in-person training material should be made publicly available. Taking a 40 hour class on how to cheat families out of thousands of dollars does not serve the best interest of children. It would be nice to see what the training uses for procedures for investigation, definitions, and examples of what not to do.
10 hours of continuing education training is probably not sufficient for professional development for the court appointed investigative arms of the court. Maybe that’s why nobody can define a conflict of interest. Not enough training on it.
14.Comments to Standard 7
Removing standard 7 means a CFI can pretend to be an expert in nearly anything and the court could accept their opinion as such. This rule should have been a rule CFIs used to humble themselves. Removing it does not facilitate professionalism or serve the best interests of the children.
In my case, the CFI pretended to be a mental health professional and made a diagnosis. Keep in mind, I have to date, never met her in person, so that’s impossible. She also is not qualified to make such a diagnosis. The judges, without this rule, could accept those types of diagnosis as fact, which they are not. This deletion of rule 7 is merely to allow the CFIs to say whatever they want and not hold them accountable to professional standards.
15.Comments to Standard 8
Fact finding does not mean collecting hearsay for the court. This rule should clearly define that. Confirming information from independent, collateral sources is not the same thing as asking one party’s friends to provide input. The CFI should place emphasis on mandatory reporting personnel in the children’s’ lives.
In my case, there were something like 20 interviews with the other party and her friends. None of the teachers. None of the doctors. The CFI had 1 interview with me and didn’t ask to meet with anyone else I recommended. Hearsay was collected, not facts.
16.Comments to Standard 9
I don’t see a problem with age-appropriate communication. If the CFI is not trained enough on what age appropriate communication is, that is a problem with Standard 6.
A CFI should not be conducting interviews asking questions that are not appropriate for the children. They should not be planting ideas or asking questions in a way that may plant ideas. Their questions should be clearly documented and the responses as well. The interviews should be recorded to protect all parties. Failure to do these things risks causing damage to the children and goes against their best interests.
17.Comments to Standard 10
The CFI should report child abuse to the proper agency and court immediately, not after a complaint has been filed against the CFI. Delays in doing so are indicative of retaliation, not actual abuse.
18.Comments to Standard 11
A CFI report should not be compared to a PRE report but should maintain its own standard. If the report does not address the investigation adequately, it is not sufficient.
With accounting should be the time spent on what. Meaning, who was interviewed and for how long or what records were collected.
In my case, the report didn’t include the wishes of the children, as required. A CFI report should have clearly defined requirements. CFIs are not well trained to establish their own reporting requirements. At a minimum, reporting requirements should be listed, for example, as such:
1. Facts of the case
2. Parties interviewed (when, where, and how)
3. Investigative Process
4. Issues Identified
5. Children’s Wishes
6. Issues outside of scope
7. Recommendation
The CFI appointed in my case clearly violated this standard so much so that the SCAO even confirmed it after trying to limit as much guilt as they could.
19.Comments to Standard 12
To be charged $0.25 per page of a copied email is ridiculous and archaic calculation. This is particularly troublesome when someone emails the CFI hundreds of pages of documents, and then only charges on party for the copies.
For example, when I requested a copy of my case file, the CFI sent me an email stating “My fee of $135 was based on my estimate of 650 pages that I scanned printed or copied for you.” Most of those were from digital emails, like there were only 20 pages of scanned things. And an estimate was not appropriate where exact page count would have been required.
She sent a different email, without my knowledge, to the other party stating “I want to assure you that I am not charging you fees for the copies of my files that Jordan requested. I will copy you on any emails I send to him.” I was not copied on that email, clearly ex parte. The problem here is that the other party filled the case file with hundreds of pages and then only I was charged for a copy of them, without any actual accounting nor realistic costing/reimbursement.
CJD 04-05 states “Copy charges at the rate of $0.10 per page”, why would CFIs charge $0.25?
20.Comments to Standard 13
A CFI is not qualified to make recommendations for anything psychological. Doing so would be outside of the scope of CFIs and violates Standard 7. Why was my CFI given the ability to do so, only after gaining awareness of my SCAO complaint, with filing a “supplemental report” with a slanderous attempt of an evaluation clearly written in retaliation? I believe this is because the SCAO won’t hold CFIs accountable for anything. If an evaluation was recommended, that recommendation should have been submitted to the court immediately, not only after a complaint is filed.
“as soon as possible” should be changed to immediately.
21.Comments to Standard 14
No comment.
22.Comments to Standard 15
I’d love to know more about “abuse of discretion” with regards to the courts and appointing CFIs, PREs, PC/DMs, and such.
A CFIs appointment should be terminated immediately upon the discovery of violations of standards with full reimbursement to the parties.
23.Comments to Standard 16
“Unrepresented parties may use JDF form number XXX “ I don’t think pornography forms are appropriate for a CJD.
“A CFI may engage in ex parte communication with a party in the usual course of their investigation and when said communication is documented in their file.” That is not ethically correct. That allows the CFI to have “secret” communication until after the report is filed and a “fee” is paid for a copy of the case file. This is after the fact and too late to protect the best interests of the children.
“However, the CFI, parties, and counsel may enter into a written agreement for a different procedure concerning communication before the CFI begins work on the case.” As an investigative arm of the court, bias or the perception of bias can only be controlled with transparency. A CFI should not be able to violate the rules by forcing parents to sign an agreement they do not understand what they are giving up. The procedures for communication should be clear and defined for all CFIs.
The SCAO found my CFI violated this standard. I was unaware of the violation until AFTER the CFI filed their report and I paid an abusive amount for an estimated copy of the case file. A proper standard would have prevented that misconduct and not hidden it until after the effects were permanent.
24.Comments to Standard 17
Erasing “A CFI may not engage in non-disclosed communications with one party or one party’s counsel” and changing it to “A CFI may not engage in ex parte communication with counsel except in the usual course of their investigation and when said communication is documented in their file” does not add credibility to CFIs. The CFIs are acting in malicious, fraudulent positions and the solution from the committee is to remove rules that prevent fraudulent behavior? I don’t understand where this edit came from.
All they must do is say it is “usual course to consult attorneys” and all of a sudden, any ex parte communication is allowed. The context, content, and timeliness of that communication is crucial for the other party to properly explain, defend, or counter any accusations. Trial preparation is also not an acceptable use of ex parte communication. In no way shape or form should a CFI have any trial preparation from an attorney of one party. The CFI is appointed by the court as an investigative arm, not hired by the parties as an expert witness. Trial preparation is literally the definition of bias as it directly prepares testimony.
“In the context of evidence in criminal law, bias is used to describe the relationship between a party and a witness which might lead the witness to unconsciously or otherwise, give testimony in favor of or against a party, as cited in the case of United States v. Slough 22 F.”
Anyone who made this suggestion should be terminated and sanctioned immediately.
25.Comments to Standard 18
In my case, the appointment was clearly not reviewed, and the intake forms conflicted with that order. This should not be a difficult standard to maintain. Failure to follow the orders (if legally ordered) should result in the immediate termination of the CFI.
26.Comments to Standard 19
The court is not allowed to have ex parte communication with the parties, yet someone is trying to set the prior standard to allow for it. This rule makes sense.
27.Comments to Standard A
No comment.
28.Comments to Standard B
“The order of appointment should contain a provision requiring each party to copy the other party or counsel on all documentations, recordings, pictures, videos, text messages, emails, or other information or communication provided to the CFI.” Should must be changed to shall. There’s no need for anyone to abuse discretion. A CFI and the court will easily cover their basis for concerns by having the appointment order include that.
29.Comments to Standard C
It is not in the best interest of children to hold CFI reports ransom. This addition to delay reports is in violation of the purpose of appointing a CFI. Whoever has suggested this edit should also be terminated and sanctioned immediately. Failure to pay is not legally or ethically justification for someone to not have parenting time or endanger children.
When the judge fails to enforce the standards of CJD 04-08, who is responsible? Failure to disclose relationships or failure to maintain accounting hours are examples of explicit behavior that should result in non-payment of services. In any other industry, non-payment for services that involve misconduct is an accepted outcome. So again, are the judges assuming financial responsibility for the misconduct of CFIs?
30.Comments to Standard D
No comment.
31.Comments to Standard E
No comment.
32.Comments to Standard F
My CFI report was loaded into the courts system as public. The court did not ensure confidentiality. This standard should be updated to address that.
33.Comments to Standard G
My CFI filed all of her stuff through the other party. This is an appropriate addition, except for the “at no cost” part. Pro se parties currently can e-file, at $12 a filing. Why would a CFI be exempt when the CFI Max Fees are being increased?
34.Any additional comments
Section 4 (IV) does not have a comment box. If a CFI is removed from a JD for cause, they should be removed statewide. This change allows the SCAO to hide bad performing CFIs in other districts which is not acceptable.
I’m not sure what committee created these edits, but their viewpoint does not serve the best interests of the children affected by the poor management and oversight of CFIs. I’d challenge that no parent was a part of this committee. It was almost as if they took complaints and found the best way to reduce the ability of parents to file complaints against CFIs, where there are clear violations of standards. This goes against the best interests of children. These changes will not decrease misconduct from CFIs. These changes will not decrease fraud by CFIs. These changes will only cause children more harm.
I know my response on some of these seems severe, but these CFIs are in a position of trust and need to be held accountable. Just like the fraud found in the courts, the fraud found in the PREs, there is fraud in the CFIs. Its time to clean this up and clear the bad actors out. Save our families.