Document Type

Article

Publication Date

2010

Publication Title

Canadian Family Law Quarterly

Volume

29

Issue

1

First Page

1

Last Page

24

Keywords

Dispute Resolution, Children's Law, Empirical Methodology

Abstract

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The article concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

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