In family law cases in which children are involved, there are more and more requests for an opinion from an expert. Why is it important to have an expert opinion in a family conflict? Does the judge have to follow the recommendations in the expert’s report?
Who can ask for an expert opinion
These people can ask for an expert’s opinion:
- a parent
- a judge
- another person involved in the child’s life
When an expert opinion can be requested
Usually, the statements of people involved in the conflict (for example, parents and grandparents), the statements of other witnesses, and sometimes the child’s statements, give the judge enough information to make a decision in the best interests of the child.
But in more complicated cases, an expert opinion might be needed, especially for these reasons:
- An expert opinion can help the judge find out the child’s needs.
- An expert opinion can show the judge how well each parent is able to care for the child.
Many things can complicate a case. Here are a few examples:
- One parent accuses the other of sexually abusing the child.
- One parent claims the child is the victim of parental alienation, which means one parent has turned the child against the other.
- One parent claims the other has been physically or psychologically violent toward the child.
- Someone other than the biological parents wants to be a part of the child’s life, but the biological parents are refusing.
An expert report is generally considered useful if it meets these conditions:
- It is relevant to the child’s situation.
- The judge needs it to understand a scientific or technical issue.
- It has been requested in the best interests of the child.
Here are 2 examples:
The father and mother separated when the child was just a baby. The mother abandoned the child. The father hired a babysitter, who took care of the child for seven years. The father found a new spouse and no longer needed the babysitter. The child was not doing well and had behaviour problems. The babysitter went to court to ask for permission to stay in touch with the child.
The judge listened to what the father and babysitter had to say. They told different versions of the babysitter’s importance in the child’s life and the reasons for the behaviour problems. The judge requested an expert’s report to learn more about the situation and the child’s needs.
The father and mother divorced. The mother had custody of the children, and the father saw them on a regular basis. He later made changes in his life and moved closer to the children. He wanted to make changes to the custody agreement so he could spend more time with the kids.
The mother refused to let the father spend more time with the children and asked a judge to order an evaluation by an expert. She claimed that she and the father had communication problems, that their approach to raising children was very different, and that the children would be disrupted by a change in the custody arrangement. The father was not in favour of the evaluation.
The judge did not allow the mother’s request for an expert evaluation for these reasons:
Therefore, the judge did not need an expert report to make a decision in this case.
How to get an expert opinion
If you want an expert’s report, you can do one of the following things:
- Ask a judge to order a psychosocial evaluation by the Service d’expertise psychosociale (psychosocial evaluation service).
- Ask the other people involved in the conflict to agree to an evaluation.
- Ask for an expert both parties agree on to carry out the evaluation.
1. Ask a judge to order a psychosocial evaluation by the Service d’expertise psychosociale (psychosocial evaluation service).
When a conflict involves a child, the people involved can ask a judge to order a psychosocial evaluation to determine the child’s best interests.
A psychosocial evaluation is a complete evaluation by an expert of the child’s social and family situation. The expert is usually a social worker or psychologist.
These are the main steps in asking for a psychosocial evaluation:
The people involved in the case ask a judge to order a psychosocial evaluation.
- The judge determines whether an evaluation is appropriate.
- If it is appropriate, the judge will order a psychosocial evaluation. The judge can order a psychosocial evaluation even if no one asks for one.
- The file is then forwarded to the Service d’expertise psychosociale of a Youth Centre, which in turn gives it to one of its experts.
- The expert meets with the people concerned and writes a report.
- The report is sent directly to the judge, and the people involved in the case receive a copy.
- The need for an expert’s report is not challenged.
- The services of an expert from the Service d’expertise psychosociale are free.
- It can take a long time to get the expert’s report.
- You have no control over the choice of the expert.
2. Ask the other people in the conflict to agree to an evaluation.
A person who wants to hire an expert to evaluate the situation is allowed to do this.
However, the other people involved in the conflict have the right to refuse to take part in an evaluation if it is not ordered by a judge.
- You can choose the expert.
- This kind of expert’s report is expensive.
- It can take a long time to get the report.
- The other person involved in the case might
- refuse to participate in the evaluation if it is not ordered by a judge,
- challenge the need for an evaluation and the expert’s qualifications, and
- hire her own expert, which adds to the costs and delays, and complicates the case.
3. Agree on the choice of expert to carry out an evaluation.
Everyone involved in a conflict involving a child can agree on the choice of the expert.
- The parties can choose the expert together.
- Everyone co-operates.
- The need for an expert report is not challenged.
- The high cost of the expert’s report can be shared.
- This kind of evaluation is expensive.
- It can take a long time to get the expert’s report.
Influence of the expert’s opinion on the judge’s decision
During a court trial, a person who wants the expert’s report thrown out can challenge these things:
- the need for the report
- the expert’s qualifications as a true expert
- the steps the expert took, and his analysis and recommendations
Even if the person who did the evaluation and wrote the report is considered an expert in the field, the judge can still decide to set aside the recommendations.
Basically, the judge can decide how much weight to give to the expert’s opinion. However, the expert’s report and statements in court (if the expert comes to court) are important elements of evidence that the judge must take into account. A judge who decides not to follow the expert’s recommendations must justify this decision.
Here are some reasons judges have given in the past for not following an expert’s recommendations:
- The expert has no professional experience in the field that is the focus of the report.
- The expert shows preference toward one of the parties.
- The judge has doubts about the expert’s thoroughness in gathering information.
- The situation has changed so much since the report was written that it is no longer relevant.