Civil Discourse: A Colorado Family Law Blog

Child Family Investigator (CFI) vs. Parental Responsibilities Evaluation (PRE): The Divide Grows Wider

Wed, 20 Apr 2011 13:20:32 -0700

Colorado Chief Justice Michael Bender has amended judicial directive CJD 04-08 and the standard order appointing Child and Family Investigators (JDF 1318) making significant changes to the payment and scope of authority granted to a Child and Family Investigator.

• A cap on CFI fees has been established. A CFI cannot charge more than $2,000 for the investigation and report unless the Court makes specific findings of extraordinary circumstances.

• A CFI is no longer permitted to perform psychological testing or drug and alcohol evaluations.

• CFIs are not covered by quasi-judicial immunity during the performance of their duties.

• If a protection order is in place, the CFI cannot hold a meeting with both parents at the same time in violation of that order.

What does this mean for family law litigants and practitioners?

Adoption After In re C.L.S. Is Finality a Mirage?

Thu, 17 Mar 2011 15:14:54 -0700

There's a saying among law school professors that "bad facts make bad law". It's overused and trite, but sometimes it's the only way to explain a legal ruling that if applied in most circumstances would lead to undesirable results, but in a particular situation is the best justice the bench can administer.

It has long been held that placement of children into permanent, safe homes is a public policy goal of profound importance. (§19-5-216 C.R.S., §16-5-110 C.R.S, People in Interest of C.A.K., 652 P.2d 603 (Colo. 1982). A conflict frequently arises, however, when the child's interest in a stable and loving home environment conflicts with a parent's interest in preserving the privacy and integrity of the family unit. Colorado statutes make every effort to balance these interests and ensure the due process rights of biological parents are protected in adoption proceedings. These protections are grounded in the 14th Amendment of the U.S. Constitution which has been recognized as affording parents a "fundamental liberty interest in the care, custody and control of their children." (Troxel v. Granville, 530 US 57 (2000).

Part of the statutory balancing scheme in Colorado law involves certain time restrictions within which a biological parent must raise any objection to the termination of his or her parental rights. Without bright line limitations, adoptive childrens' relationships with their adoptive families would be perpetually at risk. Specifically, §19-5-105(4) C.R.S. establishes a deadline of ninety days for vacating a relinquishment or termination order and CRCP Rule 60(b) requires that challenges to a judgment obtained by fraud must be made within a six month period or at least within a "reasonable time" if the judgment is itself is void.

What happens, however, when a biological father is purposely excluded from the termination proceedings as a result of the mother's deliberate and intentional deceipt? This is precisely what happened in the recent Court of Appeals case In re C.L.S., 10 CA 0529 (Colo. App. 2011).

Domestic Violence, Protection Orders & Colorado Child Custody Cases

Tue, 16 Nov 2010 16:02:29 -0700

If you have considered a petition for a protection order, you may wonder what effect it will have on the care and custody of your children. If the restrained person is not a biological parent and never adopted the children, then a protection order can permanently limit that person from contacting you and your children. However, if the restrained person is a biological or adoptive parent, then the protection order will no longer apply to the children after 120 days. In some situations, a non-parent who has standing to seek an allocation of parental responsibilities under Colorado law will also be able to have the protection order set aside with regard to those children. (1)

Only the family court can enter orders restricting parenting time which last for more than 120 days. This is rare, even in situations where the offender-parent has been found guilty of a domestic violence crime against the victim-parent. The family court's reluctance to protect children from individuals who have demonstrated a history of violence in the home is surprising and distressing to victim-parents. When it comes to custody decisions, many judges are extremely skeptical toward reports of abuse. There is a tendency to apply a "one size fits all" approach to custody decisions, based on the assumption that a close relationship with both parents is always in the child's best interests. Many victims have reported that they were blamed for alienating the children from the abusing parent. Instead of supporting their attempts to protect their children, the family court system appears to penalize them. (2)(3)

Grandparent Visitation: Interpreting "Troxel" in Modification Cases

Thu, 30 Sep 2010 15:53:10 -0700

The Colorado Court of Appeals has released an important decision interpreting the relative rights and burdens of proof when parents and grandparents disagree about a modification to grandparent visitation. In re Parental Responsibilities of A.M., 09 CA 1430, was released on September 16, 2010. This decision clarifies the burden of proof and standard of evidence to be applied when a party wants to modify or terminate grandparent visitation.

In this case, mother sought to terminate paternal grandparent visitation, alleging that stopping these visits would be in her son's best interests. (Father's parental rights had been previously terminated as a result of his incarceration.) The case was heard in the El Paso County District Court, Judge Martinez presiding. Evidence was presented that the child had special needs, was having difficulty managing the noise and tension present in the grandparents' home and had described to his therapist incidents suggestive of drug use by the grandparents. The trial court followed the reasoning of the Colorado Supreme Court decision In re Adoption of C.A., 137 P.3d (Colo. 2006), that a presumption must be applied in favor of a fit parent's decision concerning grandparent visitation and that such presumption may only be overcome by clear and convincing evidence that (1) the parent's decision regarding grandparent visitation is not in the child's best interests, and (2) the visitation proposed by grandparents is in the child's best interests. In re C.A. had construed Colorado's grandparent visitation statue* in light of Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court decision holding that a court may not constitutionally override a fit parent's decisions regarding grandparent visits without giving those decisions special weight and identifying the special factors that might warrant the interference.

* § 19-1-117 CRS

"Parenting Under the Influence" at Pueblo CASA

Tue, 21 Sep 2010 11:03:09 -0700

Family law attorney Laurel Anne Markus J.D. and Sunni Ball, domestic relations project manager at CASA of the Pikes Peak Region will explore the impact of medical marijuana usage by a parent on the outcome of Colorado divorce and custody cases.

This free workshop is hosted by CASA of Pueblo. Registration is required
September 27, 2010
1:00 p.m.
Pueblo Municipal Justice Center
Police Conference Room

"Parenting under the influence" is a frequent issue in family law cases and this trend is expected to increase. The number of Colorado residents holding a valid MMJ registry card has doubled in the last year from 20,000 to over 40,000 individuals. The average age of a Colorado MMJ registry cardhold is 40, an age at which the majority of individuals are actively involved in raising families. This presentation will prepare family law professionals, child advocates, counselors and judicial personnel to address the issues raised when a parent who using MMJ becomes a party to a domestic relations case.

The care and feeding of your Colorado LLC

Thu, 16 Sep 2010 22:19:11 -0700

If you're a small business owner, chances are you operate your business through a limited liability company. After all, limited liability companies are inexpensive to set up, allow for "pass through" taxation and can significantly reduce the risk of your being held personally liable for a debt or liability of the business. Thus, if a store is owned and operated through an LLC, generally speaking, if a customer slips and falls while browsing through the aisles, he would not be able to sue the owners and raid their childrens' college funds. He could only sue the company and collect against the company's assets, plus its liability insurance policy.

Unfortunately, many individuals think that once they have filed their Articles of Organization with the Colorado Secretary of State, their limited liability company is formed and goes on "auto pilot" for the remainder of the life of their business. These individuals may be in for a rude awakening if the true metal of their LLC is ever tested by an actual lawsuit or creditor collection agency.

A limited liability company is only useful to the extent it is respected as being a bona fide company. This means that all the formalities must be observed in setting up and operating the LLC. Is your limited liability company on the right track? Answer "true" or "false" to the following five basic statements:

Colorado Springs Small Business Loans

Mon, 09 Aug 2010 19:36:55 -0700

Even the smallest business venture will probably require some financing in the beginning. If an entrepreneur is unable to save up enough money to start his or her venture, then a small business loan may provide the necessary funds. However, accumulating business debt is risky. You can manage those risks by learning about different loan programs and committing to a debt management strategy in advance.

A few tips to consider: (1) Don't use your credit card for any amount that you will not pay within 30 days. Credit card interest rates are at an historic high. This cost of borrowing can easily crush a small business. (2) Think long and hard before using a home equity loan. It's likely that your home is your most valuable asset. While most business lenders will require you to personally co-sign for a loan to the business, it will be challenging for the lender to collect against your home since the mortgage lender has a first priority lien. However, if you use a home equity loan to finance your business, you create a situation in which the home equity lender has a security interest in your home and is in a better position to force a foreclosure sale. (3) Don't fall for 0% financing lures. Frequently, the price of the item has been inflated so that the "savings" are illusory to begin with. In addition, the terms of these purchase finance contracts are frequently draconian. For example, it is not uncommon to see a clause that allows the lender to charge interest retroactively on the entire cost of the vehicle or equipment purchased if you are late in paying off the account balance before the deadline, even by a single day.

For more information about small business loans, you can attend the upcoming seminar at the Colorado Springs Small Business Development Center this Friday, August 13, 2010 from 1:00 - 3:00 p.m. Call (719) 255-3844 to register.

Colorado Nonprofits Can Benefit From New BBB Guidelines

Thu, 15 Jul 2010 17:23:29 -0700

The BBB Wise Giving Alliance (an affiliate of the Better Business Bureau) has released a list of the most common errors made by nonprofit organizations. According to their analysis, the greatest failures occur in the areas of lack of transparency, inadequate oversight by the organization's board of directors and insufficient assessments of staff performance and the effectiveness of the organization's programs. Transparency is a term of art that refers to the ability of the public to become familiar with the details of an organization's internal decision making and expenditures, so that donors can hold the nonprofit accountable if its actions are not consistent with its stated mission.

Other items noted in the report included the importance of publishing an Annual Report with complete program, governance and financial disclosures and making the entity's most recent IRS Form 990 available on its website.

The BBB Wise Giving Alliance produces reports on over 1,200 nationally soliciting charitable organizations. The outcomes of these evaluations are available online at www.bbb.org/charity. For smaller nonprofit organizations, the BBB Wise Giving evaluations standards serve as guideposts for excellence in nonprofit governance and operations.

Medical Marijuana & Child Custody Case: Colorado Court of Appeals

Tue, 01 Jun 2010 16:41:51 -0700

Just before the Memorial Day Weekend, our Court of Appeals released its decision in the case In re Marriage of Parr, 09 CA 0854 (May 27, 2010) the first Colorado appellate case involving an allocation of parental responsibilities in which one parent is a medical marijuana patient. As expected, the Court answered only the specific questions presented by the case on appeal, leaving many gaps in our understanding. Still, it is encouraging to finally have some judicial guidance in this hotly contested area of law.

The underlying case had a distinctive fact pattern. Father hid his application for inclusion on the medical marijuana registry from the opposing party and the Court. Father voluntarily entered into a parenting agreement that compelled him to submit to periodic urine analyses (UAs) to demonstrate he was refraining from the use of marijuana. Once he was accepted into the registry, he then sought to have the urine testing provisions of the parenting agreement stricken. A few months later, Mother petitioned the Court to restrict Father's parenting time because he had not submitted clean UAs per the parenting agreement and was asking the child to "keep secrets about his drug use". Without holding an evidentiary hearing, the district court ordered that Father's parenting time would be supervised until he either demonstrated by clear and convincing evidence that his use of medical marijuana was not detrimental to the child or submitted a clean hair follicle test. Moreover, Father was ordered not to consume marijuana while with the child. Consequently, while his usage of marijuana was a factor in the original allocation of parental responsibilities, the case was brought up on appeal from a modification of parenting time.

Colorado Divorce: Division of Property Received by Inheritance or Gift

Tue, 18 May 2010 15:16:24 -0700

Case Study: What Happens to Inherited or Gifted Property in a Colorado Divorce?
Prior to getting married, Casey and Cameron each owned their own house. Cameron inherited his house from his parents when they passed away in a boating accident. In anticipation of the wedding, Casey sold her home and moved into Cameron's place. Casey deposited the sales proceeds from her house into an individual savings account. Two years after they got married, Casey and Cameron refinanced the house for a better interest rate and in the process changed the title so that they held the property as joint tenants. Five years into the marriage, Casey received a $10,000 gift from her grandparents (who are alive and well living in Florida). She used this money to pay for a new garage door and repairs to the redwood deck. Casey and Cameron are getting divorced. Cameron's lawyer tells Casey that the house belongs entirely to Cameron because he inherited it. What rules apply to the division of a) Casey's savings account b) the house Cameron inherited from his parents and c)the $10,000 gift from Casey's grandparents?

Property acquired prior to marriage is considered separate property. So, Casey's savings account remains hers alone and it is not subject to division in the divorce. Any increase in the value of her separate property that occurs during the marriage (i.e. interest earned on the savings account) will be marital property. But the principal balance remains separate. That said, nothing prevents the Court from giving more of the marital property to the spouse who lacks separate property, if it sees fit to do so. The law calls for equitable distribution. "Equitable" does not necessarily mean equal. The Court may also consider each spouse's separate property, if any, in determining spousal maintenance (i.e. alimony).

Colorado Bar Association CLE Presentation: Medical Marijuana & Parenting Time

Tue, 04 May 2010 16:56:45 -0700

Blog author and attorney Laurel Anne Markus will be presenting on the topic of Medical Marijuana and Parenting Time at an upcoming Colorado Bar Association CLE conference. She will be joined by Sunni Ball, Domestic Relations Program Manager at CASA of the Pikes Peak Region. They will discuss relevant considerations to the allocation of parenting time and decision making responsibilities when a parent is using legally prescribed medical marijuana.

When: May 24, 2010
Time: 12:00 - 1:00 p.m.
Where: 1900 Grant St.
3rd Floor
Denver, CO 80203

Open to attorneys and the public. Register at the Colorado Bar Association website.

New Filing Requirement for 403(b) Plans

Mon, 03 May 2010 11:46:06 -0700

Schools, charities and other nonprofit entities that offer 403(b) retirement savings plans will be required to file a complete Form 5500 for their 2009 plan year and all subsequent years. Previously, the filing requirements for 403(b) plans were limited to the first page of Form 5500 identifying only basic information such as the plan name, plan sponsor, etc. Now, a complete Form 5500 will be required, although Form 5500 SF or Form 5500 EZ may be an option for "one participant plans". Section 403(b) plans that have more than 100 participants are also required to submit to an annual, independent audit and submit supporting schedules with their Form 5500, including their audited financial statements.

A "one participant plan" is a pension benefit plan that covers only an individual (or an individual and his/her spouse) who wholly owns a trade or business whether incorporated or unincorporated or a pension benefit plan for a partnership that covers only the partners or the partners and their spouses.

Many Colorado Charities May Lose Their Tax Exemption May 16, 2010

Mon, 26 Apr 2010 16:26:16 -0700

A relatively obscure provision in the 2006 Pension Protection Act could cause as many as 400,000 nonprofit organizations to lose their tax exempt status next month. The Pension Protection Act expanded the requirement to file an annual tax return to include charitable organizations with $25,000 or less in annual gross receipts. The law authorizes the IRS to revoke the tax exempt status of any organization that fails to file tax returns for three consecutive years. As a result, on May 16, 2010, many nonprofit organizations will automatically lose their tax exempt status, resulting in unexpected tax consequences for the entities and their financial supporters.

According to an article published in last Friday's New York Times, the IRS has offered some assurances that notices of revocation are unlikely to be sent out until January 2011, giving nonprofits a small window of opportunity to come into compliance with the law. Once the organization has received notice from the IRS, its revenue will become subject to income tax and its supporters will be denied tax deductions for their donations. Small nonprofit organizations are at highest risk to be impacted by the law, since they may not invest in adequate tax advice. Even organizations that have shut down operations can be affected, if they failed to properly notify the IRS of the dissolution. Directors and managers of Colorado nonprofit organizations should ensure that they are in full compliance with the applicable tax reporting laws by contacting legal counsel or a certified public accountant.

New Study: What Motivates Donors to Give?

Sat, 24 Apr 2010 15:25:00 -0700

The Center on Philantrophy at the University of Indiana recently released the results of a study that surveyed over 10,000 Americans regarding their charitable donations. One of the more interesting conclusions reached by researchers was that contributors with higher income and education levels were more likely to report that they give to charities in order "to make the world a better place" rather than "to meet basic needs". A similar trend was observed in the motivation for giving among young donors. It's hard to imagine how the world becomes a better place without also ensuring that as many individuals as possible are able to meet their basic needs. However, the take home lesson for nonprofit fundraisers and marketing professionals may be the need to better communicate how basic sustenance is tied to larger social themes (such as women's equality or environmental conservation), particularly when they are targeting young, higher income or highly educated prospective donors.

Performance Evaluations of Colorado Employees

Mon, 12 Apr 2010 13:29:53 -0700

Nonprofit and for profit employers should conduct periodic evaluations of their employees. An annual evaluation process is sufficient for established staffmembers, but new hires or underperforming employees should be given more frequent performance reviews. The benefits of early, consistent feedback are reaped by both the employer and the staff. Some of these benefits include:

• Identification of performance problems early in the employment relationship;

• Opportunity for the adaptive employee to modify performance to meet standards;

• Ability to reassign a valuable employee who is badly matched to his or her current role before job dissatisfaction results in loss of this employee;

• Reducing risk for the employer in the event that termination of the employee becomes necessary;⁽¹⁾

Performance evaluations should be recorded in writing and kept in a locked file. Maintaining written records of employee evaluations will enable a firm to establish relevant facts in the event of litigation. For example, if an employee who was regularly late for work is let go and then claims that he or she was fired due to racial discrimination.

Small organizations can use the same evaluation form for all employees. The use of a consistent form helps the employer to support promotion, demotion or firing decisions by referring to performance data in particular categories. Larger companies can invest the time and resources in a tiered evaluation process, distinguishing various staff levels and upper management. Similarly, even a start up nonprofit organization could use a more detailed form to evaluate the Executive Director.