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| the court will generally take into account the preferences of children who are ten years old or older, but the court will not be bound to follow the children's wishes. | | the court will generally take into account the preferences of children who are ten years old or older, but the court will not be bound to follow the children's wishes. |
| There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain. | | There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain. |
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| ===Custody and Access Reports ("Section 15 Reports")===
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| Section 15 of the Family Relations Act allows the court to order that an assessment be conducted of each party's parenting abilities and relationship with their children by a mental health professional. These are known as "section 15 reports" or "custody and access reports." These reports are particularly important where the dispute between the parties is especially fractious and unlikely to settle.
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| The Supreme Court of British Columbia, in a 2001 case called Gupta v. Gupta, described s. 15 reports this way:
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| "The purpose of a Court ordered s. 15 Assessment and Report ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."
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| When a s. 15 report is required, the court will usually name a particular psychologist or psychiatrist to conduct the assessment. In the provincial court, the court will usually refer the parties to the family justice counsellor office.
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| Ordinarily, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.
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| Once the report is finished, which can take anywhere from two months to eight months, the assessor sends the report to both parties. These reports can be used in two ways: to encourage settlement; and, at trial, to persuade the court that one parent is to be preferred over the other. The person who prepared the report can be called to testify at the trial and will be subject to cross-examination as to how the assessor reached his or her recommendations.
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| It is important to remember that the function of the assessor in court is to present his or her recommendations and the evidence that he or she relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A s. 15 report is merely the assessor's recommendation to the court based on his or her particular expertise as an experienced psychologist, psychiatrist or family justice counsellor; the report is not a final determination of the issue.
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| A list of some of the psychologists and psychiatrists who prepare s. 15 reports is provided in the Resources & Links section.
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| ===Views of the Child Reports===
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| A views of the child report, sometimes called a "hear the child report," is exactly what it sounds like: it is a report which describes the child's preferences about his or her parenting arrangements and living circumstances. These reports might address a child's preferences about the home he or she would like to live in, whether the child wishes to move out of town with a parent, or the schedule of the child's time with each parent. It might address the child's experiences of the conflict between his or her parents, or perhaps the child's experience with a parent's new partner.
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| These reports are ordered under s. 15 of the Family Relations Act, just like custody and access reports are ordered. Section 15 is broadly worded and says that the court can order "a person" to prepare a report "in the manner the court directs." As a result, there are two types of views of the child report, one type prepared by experts, like psychologists and psychiatrists, and another type prepared by lay persons, like lawyers, family justice counsellors and therapists.
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| Although views of the child reports can usually be finished much more quickly and more cheaply than s. 15 reports, they are no substitute for a proper custody and access report. Parents who want a views of the child report must understand that these reports do not provide the full reporting, testing and analysis offered by a custody and access report, particularly when the person preparing the views of the child report is not a psychologist or psychiatrist.
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| It is important to know that the court will not make a decision based only on what the views of the child report says. The child is not making the decision and will not be responsible for making the decision. It's important for the child to know this as well.
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| ====Expert Views of the Child Reports====
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| Expert views of the child reports usually wind up looking like condensed custody and access reports which focus on the child's reports to the asssessor and include an opinion as to whether the child's reported preferences represent the child's true preferences, whether the child was coached to report the preferences reported, and perhaps whether the child is being alienated from one parent by the other parent.
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| The assessor will usually meet with the child at least once, in fact probably more than once, and will administer a variety of tests intended to give the assessor more insight into the child's preferences and state of mind. The assessor may or may not collect additional information from the parents or the other people involved in the child's life.
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| Because these reports do not involve the same extensive interviews and testing involved in custody and access reports, they tend to be cheaper to prepare and they should be prepared faster than custody and access reports.
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| These sorts or reports are generally only appropriate when:
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| a full custody and access report isn't necessary;
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| the child is more than six or seven years old; and,
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| the judge wants to hear from the child but does not want to interview the child him- or herself.
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| ====Lay Views of the Child Reports====
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| Views of the child reports prepared by lay persons like lawyers, family justice counsellors or therapists do not provide the same level of analysis or authority offered by expert views of the child reports. These people are not qualified to offer an opinion about the child's state of mind or the truthfulness of the child's statements. All they can really do is say what the child told them.
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| The assessor will generally meet with the child once and speak with each parent once. The assessor will generally know very little about the background of the case before meeting the child except for what the child's parents have explained.
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| Because these reports involve no testing and no expert analysis they can usually be prepared very quickly and very cheaply. (I can, for example, usually get reports like these done within a week or two of being hired, although you shouldn't assume this is typical of all lay assessors.)
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| These sorts of reports are generally only appropriate when:
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| the parents understand that the views of the child are only one part of the whole picture;
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| the parents understand that the report is not an expert report;
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| a full custody and access report isn't necessary;
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| the child is more than eight or nine years old; and,
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| the judge wants to hear from the child but does not want to interview the child him- or herself.
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| These reports will not be appropriate where the child is not capable of expressing his or her preferences or where there are allegations of parental alienation.
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| Back to the top of this chapter.
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| ==Types of Custody Order== | | ==Types of Custody Order== |
