Area of Law: Private Investigation
Answer Number: 992
Child custody investigationsRegion: Ontario Answer Number: 992
What is child custody?
Child custody means having care and control of children. If you are separating and have children, custody and visitation rights will probably be among the most important concerns.
In some cases, custody of children may be agreed upon by both parents and put in writing in a separation agreement. If parents or guardians cannot come to an agreement, they may hire a lawyer or mediator to help resolve the issues. If they still cannot come to an agreement, it will be up to the court to decide. A parent may be fighting for full or partial custody, or, as is often the case, they may simply wish to increase visitation time with their children.
When is custody an issue?
Child custody and access decisions can often become an issue if one parent believes the other parent is unfit to raise the children. This could be due to:
- the stability of the other parent’s home life,
- the conduct of the other parent (such as engaging in criminal activity or having a drug or alcohol addiction), or
- the other parent’s inability to provide or care for the child, financially or otherwise.
Sometimes, however, it is more about one parent disagreeing with how the other parent will raise the child, or about a parent breaching an agreement regarding:
- Education, or
- Medical care
Child custody investigations
When are investigations conducted?
If spouses do not agree on the issues of custody and access and the court must decide, the judge must consider only the children’s best interests when making a decision. In order to make its decision, the court may order an assessment or an investigation to be conducted by the Office of the Children’s Lawyer. In addition to court-ordered investigations, parents may themselves hire a private investigator in order to provide evidence in a child custody dispute.
What is the purpose of an investigation?
An investigation may uncover many factors that a court will take into consideration when determining the best interests of the child. This includes if a parent:
- has been violent or abusive to the other spouse or children,
- is involved in criminal activity,
- is financially stable and able to provide for the children’s needs,
- has a history of mental illness,
- abuses alcohol or drugs,
- neglects the children,
- has a history of driving offences, or
- does anything else that could affect the children’s well-being.
Very often these investigations include not just the parent or guardian, but other family members and caregivers as well.
Types of investigations in child custody cases
If parents cannot agree on custody issues, a private assessor can be appointed to help the court decide what is in a child’s best interests. A private assessor is a professional, such as a psychologist, social worker or mental health professional, who is considered to be qualified to evaluate the situation and make recommendations as to what is best for the child. A private assessor can be appointed by either parent (if the other parent agrees), or by the court. The private assessor’s fee is the responsibility of the parents. During an assessment, the assessor will meet with the children and parents to conduct tests and make observations. The assessment will help evaluate and assess the mental and emotional state of each parent, and their parenting skills.
The assessor will make a written recommendation to the judge as to which parent they believe should get custody and why. At that point, if the parents are still unable to come to an agreement about custody and access issues, or if they disagree with a court’s decision, one or both parents may choose to file the report as evidence in the ongoing custody and access dispute.
Office of the Children’s Lawyer investigations
Along with assessments, the court, or one or both parents, may request the appointment of the Office of the Children’s Lawyer to conduct an investigation and prepare a report, called a Custody and Access Report. The investigations are conducted by social workers, called clinical investigators. The investigator will speak with family members and others who have been involved with the family to determine what is in the best interests of the child based on the child’s needs and wishes, and the family’s ability to meet those needs.
Once a Custody and Access investigation is completed, the investigator will make a written report giving recommendations to the court on all matters concerning child custody and access, as well as child support and education issues. The report is filed with the court and becomes part of the court record.
Copies of the report are also sent to the lawyers of each party. In addition, each party has the right to send a formal dispute of the report to the court and the Office of the Children’s Lawyer. Investigators may also be called to give evidence.
Private investigations by parents or guardians
A parent involved in a custody dispute may hire a private investigator to find evidence proving the other parent or guardian is unfit, or a child’s safety is at risk. In some cases, the lawyer representing the parent may be the one to hire the investigator.
When a private investigator is hired, they will use many types of investigative techniques to find evidence. The three most common are:
- Surveillance, including photographs and videotapes: to monitor activities of the parent and document incidents of neglect, abuse or other forms of mistreatment.
- Background searches, such as for criminal records, alcohol and substance abuse, lawsuits, and financial problems: to determine a parent’s ability to look after a child both financially and otherwise.
- Witness statements: to help establish character, conduct and suitability of a parent to have custody.
As long as it is obtained legally, evidence gathered by a private investigator can be presented to the court. Evidence may include a written report, photographs, witness statements, and videotapes. An investigator can also testify in court to substantiate claims regarding the quality and suitability of the home environment, and the acceptability of a parent’s conduct.
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