:: Determining custody with evaluation and representation::

In family litigation, the Court must ensure that the interests of the child are protected. Sometimes the child’s interests differ from those of the parents. Because they are personally involved in the proceedings, it is difficult for them to have the necessary objectivity to make a decision that respects the child’s interests. The question then arises whether the child should testify at trial.

The Court will have several ways to determine this:

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+ Psychosocial evaluation

If the two parties agree, the judge will issue a psychosocial evaluation order to ensure that this testimony is expedient and in the child’s best interest. A party may also request this, and the judge will order the evaluation if he is convinced that it is necessary.

The judge then will determine the expert’s mandate and will refer the parties to the Service d’expertise psychosociale (Psychosocial Evaluation Service) of the Superior Court. Once the report is completed, the expert will send it to the Chief Justice, who will forward it to the parties. The report is an integral part of the proof in the file. However, the judge is not bound by the evaluation’s recommendations.

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+ The attorney for the child

A children’s attorney may be appointed by order of the judge or at the request of one or both of the parties, if this representation is in the child’s best interest. Depending on the child’s age, the attorney will play a different role:

- If the child is mature enough to understand the situation and express a choice, he can then mandate his lawyer directly. The lawyer will have to advise his young client and represent him in Court. It is up to the lawyer to decide whether or not the child has the capacity to mandate him.

- If the attorney considers that the child does not have the required maturity, he must then ensure that the decisions are made in the child’s best interest and that the child’s rights are respected.

It is important to know that the children’s attorney is bound by professional secrecy. He may not disclose what his client tells him to the other parties.

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