Custody Settlement Without Court? What You Need to Know!

It is possible that you and your spouse/partner, along with your lawyers, may be able to reach a custody agreement without going to trial. If this is the case, the settlement or parenting agreement will be approved by the court and you will be bound by it.

However, in acrimonious or abusive situations, or when there is a significant lack of trust between spouses/partners.  It is often up to the court to resolve the issue. If you find yourself in this situation, there are some things you should know:

First, in order for the judge to decide the issue, he/she may require a custody evaluation which objectively assesses children's needs and parents' abilities to meet them. The evaluation is not meant to cast blame for the divorce or to pit parents against each other. It assesses the strengths and weaknesses of both parents by considering past events, current resources and future needs so the family can adjust to divorce as positively as possible.

Second, a custody evaluation involves a series of interviews by professionals during which you will be asked questions individually and with the other parent. The interviewers may also want to observe you with your children and/or speak with the children on their own. It is important to remember that thorough evaluations require the participation of both parents; therefore, seeking your own evaluator is not always a good idea as courts often consider the findings of separate evaluators incomplete.

Third, there are different types of evaluations that occur during the process. Lawyers often call on professionals (usually psychologists, psychiatrists or social workers) to assess various circumstances in order to determine what settlement is in the best interests of the child. The most comprehensive evaluation is a Section 30 evaluation, which is the most time-consuming and expensive of evaluations and is usually reserved for only the most acrimonious of separations.

As parents naturally will present themselves in the best possible way during custody evaluations and because professionals can be fooled, a wide variety of sources should be used for the assessment. Therefore, it is important for you to know basic methodological principles that assessors should consider using:

  1. Intellectual and neuropsychological tests are particularly useful in situations in which a parent has abused drugs, sustained a head injury or suffers from a degenerative disease. These professionals may also want to assess the children to determine their own level of functioning and what they need from their parents.
  2. Records from schools and agencies like the Children's Aid Society as well as medical records and criminal record checks are useful in providing other external information.
  3. Assessments of surprise tasks can reveal how parents cope and manage stress with their children. Such an approach balances parents' tendencies to prepare themselves and their children for the interview. Instead of observing 'staged' examples of the parent-child relationship, assessors in these situations can see a more accurate picture of the family as they deal with unpredictable circumstances.

It is important to remember that professionals who deal with custody issues have the best expertise and can refer to the latest research, often setting aside biases and employing observational and scientific methods that reveal patterns of parenting in the most objective way.

Ask about the cost of evaluation and, through the process, remember to consider your marriage problems and your parenting concerns separately. A custody evaluation is not about the past. Keeping this in mind will help you and your children prepare for the future.

Revised March 2015