What is in the UNCRC?
The UN Convention on the Rights of the Child (UNCRC) is an important, legally binding agreement signed by 196 countries (as of 12 July 2022) which outlines the fundamental rights of every child, regardless of their race, religion or abilities. The Convention is also the most widely ratified human rights treaty in the world. All UN member states except for the United States have ratified the Convention. The Convention came into force in the UK in 1992.
In the United States, family courts operate under the principle of the “best interests of the child.” This standard is meant to ensure that the welfare and needs of children take precedence in legal decisions surrounding custody and family disputes. However, as implemented, this system has significant flaws. In states like Colorado and across the U.S., the lack of accountability, transparency, and uniform qualifications for custody evaluators has created a troubling situation. It is a system that often fails to safeguard the very children it is meant to protect, impacting not only families but ultimately the fabric of society.
The UNCRC and the U.S.’s Reluctance to Adopt Comprehensive Children’s Rights
Many U.S. policymakers argue that children’s rights are already well-protected by U.S. laws and the Constitution. They contend that ratifying the UNCRC would be redundant, as American laws (such as those prohibiting child labor and ensuring education) already cover many of the same protections offered by the Convention. They argue that the U.S. has extensive legal frameworks, such as the Child Abuse Prevention and Treatment Act (CAPTA) and laws related to education and child welfare, that already protect children’s rights effectively.
Critics argue, however, that while these laws provide protections, they lack the comprehensive rights-based approach of the UNCRC, which frames children as individuals with specific rights rather than as dependents to be protected. Ratifying the Convention would signal a shift in recognizing children’s rights as independent of parental or state control.
This refusal leaves children without a codified set of rights, making them dependent on varying state standards and individual court rulings. By ignoring the UNCRC, the U.S. has failed to recognize children as autonomous individuals with specific rights and needs in the legal system.
The "Best Interests of the Child" Standard: Limitations and Vulnerabilities
The "best interests of the child" principle sounds ideal in theory, but in practice, it is vague and inconsistently applied. In Colorado and many other states, family courts rely on third-party custody evaluators to help determine what these "best interests" entail. These evaluators conduct interviews, observe family interactions, and make recommendations that significantly influence judicial decisions. However, several factors undermine the reliability and effectiveness of this process:
1. Lack of Standardized Qualifications:
In Colorado, custody evaluators, often called Parental Responsibility Evaluators (PREs), are tasked with making life-altering recommendations for families. Yet many lack formal mental health training, which is essential for assessing the needs and psychological well-being of children. These evaluators may not have experience in child development or trauma, despite these being critical areas of knowledge for assessing family dynamics.
2. Absence of Rigorous Oversight:
In most cases, custody evaluators are privately contracted rather than government-employed, resulting in little oversight of their practices or qualifications. Parents who undergo these evaluations often have no clear way to report grievances or demand accountability for substandard evaluations. In states like Colorado, PREs are granted quasi-judicial immunity, protecting them from legal consequences even if their evaluations are demonstrably flawed. This lack of accountability fosters a system where children’s voices and interests can be misrepresented, distorted, or ignored without repercussions.
3. Financial Burden on Families:
The cost of custody evaluations is often exorbitant, with families sometimes paying thousands of dollars for an assessment that may lack thoroughness or accuracy. For many families, particularly those already financially strained by divorce or separation, these evaluations are a substantial financial burden. In Colorado, the cost of a full PRE evaluation can range from $5,000 to over $10,000. The expense involved creates a system where only families with sufficient resources can afford the most thorough evaluations, leaving others at a disadvantage.
4. Inconsistencies in Child Representation:
The best interests standard theoretically guarantees that children’s voices are considered in court decisions, but the current system falls short. Custody evaluators are supposed to advocate for children, but in reality, they may overlook or misinterpret children’s needs due to their lack of training or bias. Often, children’s preferences are minimized or dismissed, especially in contentious custody disputes where evaluators lean heavily on their own judgments, rather than on structured, child-centered assessments.
5. Implications for Children, Families, and Society
The consequences of an unreliable custody evaluation system are far-reaching. When children’s needs are misrepresented or dismissed, they can experience trauma that may last a lifetime. Family court cases can drag on for years, leading to prolonged instability that affects children’s mental health, school performance, and social development. For families, the drawn-out and costly nature of custody disputes strains relationships and often hinders effective co-parenting.
On a societal level, this dysfunction in the family court system perpetuates cycles of trauma and instability. Children subjected to prolonged custody battles may carry the psychological effects into adulthood, impacting their relationships, job stability, and mental health. The ripple effect of this flawed system thus reaches beyond the individual family unit, affecting communities and potentially future generations.
Proposals for Reform: Making Family Courts Truly Child-Centered
To address these issues, several reforms are necessary to shift the system toward genuine child-centered practices that uphold children’s rights and well-being.
1. Implementing Qualifications and Standards for Custody Evaluators:
States should establish strict qualification standards for custody evaluators, including mandatory training in child psychology, trauma-informed care, and family dynamics. Requiring evaluators to undergo certification and continuing education would ensure that they possess the knowledge necessary to accurately assess children’s needs.
2. Ensuring Transparency and Accountability:
Custody evaluators should be subject to regular reviews and evaluations, with a system for parents to submit complaints that are taken seriously. Removing or limiting judicial immunity for evaluators could help deter misconduct and encourage evaluators to perform their duties with integrity and care. Accountability measures would also include tracking and reviewing evaluators’ recommendations over time to identify any patterns of bias or substandard practices.
3. Creating Affordable and Accessible Evaluation Options:
Family courts should work to reduce the financial burden on families by subsidizing or standardizing the costs of custody evaluations. Establishing sliding scales or state-funded options for evaluations would make it possible for more families to access high-quality assessments, regardless of income level.
4. Incorporating the UNCRC Principles into Family Court Practices:
Although the U.S. has not ratified the UNCRC, its principles could still inform family court practices. A commitment to hearing and respecting children’s voices, protecting their mental health, and recognizing their unique needs as rights-holders would represent a significant improvement. Courts could adopt practices to directly involve children in age-appropriate ways, ensuring they have a voice in decisions that shape their lives.
The “best interests of the child” standard, as implemented in family courts in Colorado and across the U.S., is failing the children it is supposed to protect. The system’s dependence on unregulated, often unqualified custody evaluators exacerbates an already broken system. Reform is essential—not only to better serve children and families in the present but to safeguard the future of society as a whole. By embracing transparency, accountability, and qualifications in the evaluation process, and by moving closer to the UNCRC’s vision of child rights, family courts can begin to genuinely prioritize children’s welfare in a way that reflects their critical importance to our collective future.
The modern "best interest" standard gives the state the authority to step in as a "parent" to protect children's welfare, if necessary. This standard is broad and leaves much of its interpretation up to the judge, who of course, relies on the custody evaluator to determine what serves the child's best interest.
This approach explicitly guarantees the child's right to express their views, and gives them the right to speak directly in legal processes. Their views must "be given due weight" and they are recognized as having a meaningful, unfiltered role in the process.
Comparison of the Best Interests of the Child Standard (U.S.) vs. the UN Convention on the Rights of the Child (UNCRC)
1. Focus
- Best Interests of the Child (U.S.): Ensures the welfare of the child, typically interpreted by adults (like judges or custody evaluators) who decide what is best for the child.
- UNCRC: Emphasizes that children are rights-holders with inherent rights to participate in decisions that affect them.
2. Children’s Voice and Participation
- Best Interests of the Child (U.S.): Children are often involved indirectly, with limited direct input, especially for younger children. Adults generally decide on their behalf.
- UNCRC: States that children have a right to be heard (Article 12) in all decisions affecting them, depending on their age and maturity.
3. Parental Rights vs. Child Rights
- Best Interests of the Child (U.S.): Balances the interests of parents and children, often prioritizing parental decision-making authority.
- UNCRC: Centers on the child’s rights as primary, while recognizing the role of parents in guiding their children.
4. Implementation and Standards
- Best Interests of the Child (U.S.): Standards vary widely by state, with inconsistencies in evaluator qualifications and process.
- UNCRC: Requires universal, rights-based standards in signatory countries, promoting consistency and equality for children’s welfare.
5. Mental Health and Development
- Best Interests of the Child (U.S.): Addresses mental health indirectly as part of “best interests” but often lacks mental health professionals’ input.
- UNCRC: Protects mental health as a right (Articles 19, 24), emphasizing access to health care and mental health support.
6. Accountability and Oversight
- Best Interests of the Child (U.S.): Limited accountability for custody evaluators, with some states offering quasi-judicial immunity, reducing oversight.
- UNCRC: Mandates accountability, with regular reporting to the UN Committee on the Rights of the Child to monitor compliance.
7. Legal Framework and Enforceability
- Best Interests of the Child (U.S.): Operates independently of international standards and varies by state, often without a rights-based focus.
- UNCRC: Legally binding on signatory countries, establishing international accountability and specific rights for children.
8. Objective
- Best Interests of the Child (U.S.): Provides a flexible standard for courts to interpret what is best for each child.
- UNCRC: Establishes a comprehensive framework that ensures universal rights for all children, independent of adult interpretation.
Recognizing when a parental responsibility evaluator may have deviated from their professional guidelines is crucial for ensuring fairness in the custody process. This information aims to guide you in identifying potential rule violations by evaluators, emphasizing the importance of a focused, evidence-based approach to safeguarding your child's best interests throughout this challenging period. Some examples include:
- Ignoring Evidence: Overlooking documented instances of domestic violence, abuse, or neglect that you have provided.
- Unsubstantiated Conclusions: Drawing conclusions about parenting abilities or the child's preferences without clear evidence or by disregarding significant context.
- Lack of Neutrality: Showing favoritism towards one parent without justification, potentially indicated by uneven time spent with each parent or disproportionate focus on one parent's shortcomings.
- Failure to Consider Relevant Information: Not taking into account the child's expressed fears or discomfort around one parent, or neglecting input from teachers, therapists, or other professionals who have insight into the child's well-being.
- Disregarding Professional Standards: Not adhering to guidelines for evaluating domestic violence or abuse, such as ignoring signs of psychological or emotional abuse.
The most effective way to protect yourself is to document the entire process. This includes each interaction you have as well as your concerns during the evaluation process. This is best done by maintaining a detailed journal. Record dates, times, descriptions of interactions, questions asked, and responses given. Note any discrepancies or omissions in the evaluator's questions or reports. Save all communications, including emails and texts, and consider the context of these interactions in relation to the evaluator's fairness and objectivity. This approach ensures a comprehensive and chronological record, providing a solid foundation for addressing any issues that may arise. For more information on how to do that visit the How to Document Page
For more details on the complexities and challenges within the PRE system in Colorado, you can refer to this ProPublica investigation .
It's understandable to feel caught in a tough position when dealing with the evaluation process, especially when concerns about safety and the best interests of your child are at stake. The system's complexities can indeed make it challenging for parents to navigate these situations without feeling like they're risking negative repercussions. But in reallity, here's the scenario: Filing a complaint against a PRE before the custody hearing might expedite addressing any misconduct or bias, potentially influencing the court's decision regarding custody. If concerns are valid and substantiated, it could lead to a re-evaluation of the child's best interests, ensuring their safety. It's crucial to present detailed evidence and arguments to substantiate the claim of bias or misconduct. This proactive approach seeks to prevent any harm that might result from an unjust custody decision. Filing a complaint against a PRE before the custody hearing could lead to an investigation into the evaluator's conduct, potentially affecting the custody decision if the complaint is found to be valid. This action could safeguard the child's well-being by ensuring a fair assessment of the situation. However, filing after the decision might not change the immediate custody outcome but could address professional misconduct and possibly lead to sanctions against the PRE.
Filing a complaint before a custody hearing could raise concerns about backlash, such as perceived conflict with the evaluator or the court seeing the complaint as adversarial. It's important to approach this carefully, focusing on the child's safety and well-being. Providing clear, objective evidence to support the complaint can help mitigate potential negative perceptions, emphasizing that the action is in the best interest of the child and not motivated by personal conflict. When courts do not adhere to their own rules in situations involving Parental Responsibility Evaluators (PREs), especially in cases of domestic violence, it can result in a significant injustice. It's crucial that the judiciary ensures these standards are consistently applied and followed to protect the welfare and safety of children and vulnerable parties. Failure to do so can lead to decisions that may not reflect the best interests of the child, potentially placing them in harmful situations. Upholding these rules is fundamental to ensuring a fair and just legal process, where the rights and safety of individuals are supposed to be safeguarded.
Advocating for oneself and holding courts accountable is crucial, especially in cases involving children's welfare and domestic violence. Parents, facing adversity and seeking justice, must assertively demand that courts follow established protocols to safeguard children's best interests. Silence or passivity risks further injustice, making vocal advocacy essential. In a system where parental voices might feel marginalized, speaking out becomes a powerful tool for change, ensuring that the protective measures intended by the law are fully enacted and respected.
Initial Preparation
1. Credentials and Conflict of Interest
- Obtain and verify the credentials of the custody evaluator.
- Check for any potential conflicts of interest, such as previous associations with your ex.
- If a conflict of interest is found, file a motion within 10 days.
2. Evaluator Training and Qualifications
- Ensure the evaluator has completed HB 1228 training for domestic violence.
- Prepare questions regarding their qualifications and experience.
Documentation and Paperwork
3. Reviewing and Signing Documents
- Carefully review all policies, HIPAA forms, and other documents.
- Keep copies of all signed documents for your records.
4. Collaterals
- Choose reliable individuals (friends, family, colleagues) who can vouch for your parenting.
- Alert these individuals for potential interviews.
Initial Meetings
5. First Interview
- Likely over Zoom or similar platform, covering legalities and policies.
- Mention any need for psychological testing of your ex.
- Clearly state any issues of domestic violence, child abuse, or psychological abuse.
6. Second Interview
- More thorough, covering personal and familial history.
- Focus on the well-being and safety of the child.
- Prepare a timeline and summary of your case to present.
Child and Home Visits
7. Child Interview
- The evaluator will likely meet your child once in person.
- Minimize the stress for your child, explaining the evaluator’s role simply and reassuringly.
- Avoid coaching your child on what to say.
8. Home Visit
- The evaluator will tour your home; keep it clean but not overly perfect.
- Provide the evaluator with your prepared timeline and summary.
- Do not bring up new concerns unless prompted by the evaluator.
Ongoing Communication and Reporting
9. Communication
- Document any concerns and communicate via email rather than texting.
- Be prepared for last-minute questions from the evaluator as the report nears completion.
10. Dress Code
- Dress casually and comfortably for home visits.
- Dress more formally for office visits.
Final Steps
11. Reading and Objecting to the Report
- Request the evaluator's case files and review the report carefully.
- Object to inaccuracies immediately and request an independent evaluation if necessary.
12. Requesting Evaluator’s Presence at Hearing
- Ensure the evaluator is present at the hearing to address any questions directly, this is mostly important if you are objecting to their report. Then it is an absolute necessity.
13. Post-Report Actions
- Do not contact the evaluator between receiving the report and the hearing.
- File any necessary complaints against the evaluator after the case concludes.
Additional Tips
- Stay calm, clear-headed, and focused on the child’s best interests throughout the process.
- Prepare thoroughly but avoid appearing overly controlling or manipulative.
- Utilize professional services for timeline preparation and legal consultation if needed.
Website Services
- Offer services for timeline preparation, narrative consultation, and evidence review.
- Provide resources and support for individuals preparing for custody evaluations.
By following this checklist, you can navigate the custody evaluation process with confidence and clarity, ensuring that your child's well-being remains the primary focus.
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