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Colorado’s parental responsibility evaluator system is broken

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“People come in and say, ‘You know, this person has been terrible to me for 17 years.’ And you’ve just been hanging in there all that time and you had five kids? How was it really that bad all that time?” he said.

Then, he said, he’ll meet the partner who’s been accused of the abuse, “I look at their information and I’m like, ‘Oh, these allegations are really not even possible.’”

More often than not, he said, the accusers are exaggerating “to see what kind of legal advantage they can get.”

Conducting a Custody Evaluation During a Criminal Investigation

While the Colorado statute governing PREs requires evaluators to release their underlying case file to involved parties who request it, the files don’t include some aspects of how evaluators arrive at their recommendations. PREs frequently conduct in-depth psychological testing, but may refuse to release the results to clients, forcing parents to hire another psychologist to review the data. And parents are not immediately privy to what was included and omitted from their final report.

The day after Kilmer released his report, Elina’s mother requested the documentation used in his evaluation. Kilmer gave her his shorthand notes but refused to release recordings or transcripts of his interviews. When Karin continued to pursue the information, Kilmer sent her a cease-and-desist letter.

Sometimes the contents of evaluators’ reports are only disclosed if the PRE is subpoenaed and testifies in court.

That’s how one woman said she found out that Kilmer had not mentioned her ex-husband’s violence against her and her daughter in his recommendations. The woman asked to remain anonymous for fear of retaliation from her ex-husband.

In that case, Kilmer was not acting as a PRE but as a court-selected investigator. The court appointed Kilmer in August of 2019. Midway through the evaluation, she said, she learned of Kilmer’s record of domestic violence but didn’t challenge his involvement for fear it would hurt her case.

In her initial interview, she told Kilmer that her husband had become increasingly violent toward her after she became pregnant with their child, according to the woman and Kilmer’s court testimony. When she was five months pregnant, her ex-husband was arrested and charged with assault after grabbing her hair and slamming her head into the ground, resulting in a concussion and a neck contusion, according to medical records. “Assault” is listed as part of the medical diagnosis. The woman was reluctant to pursue charges and the district attorney chose not to prosecute the case, according to court testimony.

Under cross-examination in the couple’s custody case, Kilmer said he knew about the incident and had reviewed the husband’s arrest records and the woman’s emergency room medical records. Explaining why he had excluded those details from his report, Kilmer said, “I don’t take medical providers’ consideration or determination of whether a crime happened or not. Allegations, documentation, validations are not reality.”

In the same custody case, Kilmer omitted witness accounts of the father grabbing his then-2-year-old daughter by the neck and lifting her off the ground. Under questioning, Kilmer acknowledged that more than one source had described the incident to him, but said he “didn’t understand” if abuse “had actually taken place or not.”

The mother said that when she told Kilmer about the incident, he chastised her for not calling the police. No charges were filed.

In his final recommendations, Kilmer told the court that “both parents” appeared to have made “mistakes” and exhibited “poor judgment.” Among the mother’s mistakes, he noted, was “publicly disparaging” her husband. Kilmer did not specify mistakes made by the father.

In court testimony, Kilmer said he did “consider” in his evaluation the fact that the father had lied when asked if he’d been arrested for domestic violence, but Kilmer decided against mentioning it in his report. “It ultimately didn’t seem to be something that was germane to the issue of trying to figure out … what was the safest and most appropriate parenting plan for [the child]. … I made [recommendations] with the understanding that there were these allegations but they were just that, allegations.”

This month, the judge adopted most of Kilmer’s recommendations and awarded the parents joint custody. While Kilmer had recommended that the parents share decision-making authority, the judge awarded that power solely to the mother.

Legal and custody experts advise court-appointed mental health professionals against agreeing to participate in cases involving allegations of abuse if law enforcement is still investigating them. “It is not the place of a custody evaluator to determine if abuse took place, that’s a criminal matter,” said Brantley, the chair of the APA child custody task force. Brantley said that this is a best practice but not a formal guideline.

In 2020, Kilmer accepted a custody case involving allegations of spousal rape and child sexual abuse and issued a report while police were still investigating the allegations involving the child. (Police closed the spousal rape inquiry shortly before Kilmer’s appointment due to a lack of corroborating witnesses or DNA evidence, according to the police report.)

Kilmer did not speak to the detective investigating the case, according to his report. The police department confirmed to ProPublica that they have no record of Kilmer contacting them. The detective investigating the case also confirmed that the child abuse case remains open.

Kilmer also did not interview a social worker at a local children’s hospital who had reported suspected abuse of the same child to the Adams County Sheriff’s Office. According to police records, the hospital employee said that the then-2-year-old child was brought in for an exam because a caretaker reported she was“displaying abnormal behavior” after staying with her father, and the girl was “touching and rubbing her vagina.”

In his PRE report, Kilmer accused the mother of “knowingly making false allegations in order to further a legal position.” He also threatened — in the only portion of the report in capital letters, bolded and underlined — that he would advise the court to restrict the mother’s parenting time if she subjected the child to further physical examinations: “IF MOTHER CONTINUES, UNFORTUNATELY FOR THE CHILDREN A RESTRICTION OF HER PARENTING TIME SHOULD BE REVIEWED BY THE HONORABLE COURT, DESPITE HER OTHERWISE EXCELLENT PARENTING SKILLS.”

Lawrence Jay Braunstein, a former prosecutor and expert on child abuse litigation, said custody evaluators should not give an opinion as to whether abuse has or has not occurred. To do so would be unethical and inappropriate, he said. “Custody evaluators stay in their lane, that’s the theory,” said Braunstein.

Kilmer declined to comment on why he did not contact law enforcement investigating this case or why he deemed the abuse allegations to be “false.”

“People often ask me, ‘How can you tell if people are lying?’ That’s where my own clinical experience comes in,” he told ProPublica. “I know what it looks like when somebody’s telling me the truth.”

“So Easily Rigged”

A Colorado law that took effect in January requires court evaluators to receive additional training on how to identify domestic violence and child abuse and on how a history of abuse should be weighed in custody recommendations. The law also tasked the court with vetting PREs and reviewing complaints against them.

The bill’s sponsor, state Rep. Meg Froelich, hopes it will spur improvements, but remains unflinching in her criticism of the system.

“Apparently, we don’t even have the ability to prevent convicted domestic abusers from being PREs,” said Froelich, adding that she was not referring to any specific PRE.

Despite the system’s problems, Froelich sees value in mental health professionals advising the court. “But what we don’t need are court professionals being hired and paid exorbitant sums of money by one of the parties.”

Colorado allows one party to a custody dispute to request and pay for a court evaluator, though the court must approve and issue the appointment.

“The PRE system is so easily rigged,” Froelich added. “PREs are racking up huge expenses, which of course benefits the more affluent spouse.”

Kilmer acknowledged that custody evaluators are put in an ethically complicated situation when one party pays them to do work on behalf of the court.

“Sometimes people are like, ‘Hey, I’m paying you! I hired you!’” said Kilmer. “And then, more often than not, the other party will complain and be like, ‘I’m not the one that wanted you. You’re clearly working for them.’”

Kilmer said he addresses this by encouraging both parties to be “upfront” about any concerns they might have about his objectivity.

PREs can earn even more by serving as expert witnesses in custody cases. And unless the court stipulates otherwise, the party who requests the testimony foots the bill.

“Payment for the evaluation will not cover testimony as an expert witness,” states a PRE contract reviewed by ProPublica.

“I charge time for preparation, travel and a four-hour minimum for expert witnessing,” Kilmer told ProPublica. He said his hourly rate is $325.

Robin M. Deutsch, a former chair of the APA Ethics Committee who trains judges, lawyers and court-appointed custody professionals in how to recognize intimate partner violence, was surprised Colorado courts allow PREs to act as expert witnesses while being paid by one party.

It is not unusual for an evaluator to testify in court if they are subpoenaed, she said. But “agreeing to shift from a parental evaluator role to be an expert witness hired by one side is absolutely an ethics code violation.” An evaluator is “the court’s witness” and should not appear to be working for one party by testifying on their behalf, she said.

Bill DeLisio, a spokesperson for the court, said Colorado law allows PREs to work as both a custody evaluator and an expert witness on the same case. The court is responsible for monitoring complaints about their objectivity and managing their testimony, he said.

Kilmer said he frequently acts as an expert witness on cases for which he also served as an evaluator. He dismissed as “ridiculous” concerns over the ethics of serving in both capacities.

“If you can produce a report, you can talk about it to the court,” he said.

Kilmer said acting as an expert witness is his “favorite” part of the job and he has improved his courtroom presentation through years of involvement in Toastmasters.

“Being in court is like being in Kabuki theater,” said Kilmer, who received his undergraduate degrees in dramatic literature and theater arts. “There’s a whole presentation — there’s a whole way that you can be more effective, by the way you talk and the way you present yourself. And you do all those things not because you’re being false, but just because that’s what the theater requires.”

“Questioning Every Bit of Reality I Had Fought to Reestablish”

In pleading guilty to misdemeanor assault, Elina’s father, Cedric Asensio, avoided a trial on charges of felony child abuse and criminal neglect. He received a deferred judgment, meaning at the end of a probation period, the plea was withdrawn and the case dismissed.

Cedric Asensio’s attorney, Kimberly Diego, said in a statement to ProPublica that the initial charge of felony child abuse against her client was “very serious,” but noted that the case was ultimately resolved through a plea to misdemeanor assault and deferred sentence, which indicates “there is much more to the story.”

“In reaching this resolution, a host of information was provided to the prosecuting attorney,” Diego stated. “What was provided included text messages, social services records, police reports, medical records, emails, and a number of media files. It was after consideration of these materials that the case was resolved in the way it was.”

When the criminal case was resolved, Elina was living full time with her mother, was going to therapy and had started ninth grade.

“Things were starting to feel a little more normal,” she said.

Her interview with Kilmer — in which she recalls him pressuring her to forgive her father and saying that it would “ruin” her relationship with her dad if she didn’t — triggered what she described as post-traumatic stress and depression. The aftermath of the conversation left her “questioning every bit of reality I had fought to reestablish.”

She stopped going to school. She sat alone in her room for hours and went days without sleeping. She lost weight and wanted to be even thinner. She thought several times about taking her own life.

“I wanted there to be less of me,” she said. “And I was too scared to ask for help. I didn’t want to prove them right, that I was sick. That I was out of control. That this was, somehow, my fault.”

Elina’s father retains equal decision-making authority over his daughter.

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