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Divorce and child custody
Parental separation is always a traumatic ordeal for children. In the past, divorce was inconceivable, especially for this reason. Another time, another mores: the collective conscience finally admitted that insisting on the maintenance of a union doomed to failure is harmful for the family. Experience also teaches that second marriages sometimes progress better than first ones. Family matters are sensitive, especially when children are involved. Hearings are held behind closed doors. Child custody case law is distinct from court case law in general and divorce case law in particular. Consideration of the interests of the child is the main reason for this .
The state of child custody case law
On this point, the case law is remarkably consistent. She describes the interests of the children as “supreme”. And that’s not about to change. In the case of a divorce for fault in particular, it is not necessarily the recognized victim spouse who will have custody of the children. The family affairs judge (JAF) will carefully examine the file to find out which of the spouses will be best able to raise the child. The personality of the parents is not the only parameter considered. Various particular situations can influence the judge’s decision. For example, if the mother is in a relationship with a violent drunk, it is very likely that she will not obtain custody of the children! Moreover, to know whether to grant sole custody or joint custody, it is always the “supreme” interest of the child that takes precedence. Sole custody is especially preferred if the other parent is deemed unfit to raise the child, even temporarily. In some extreme cases, the right of access could even be restricted. Recently (in 2014), the Court of Cassation decided that the hearing of a 12-year-old child would henceforth be authorized. This jurisprudential development makes it possible to validate the testimony of children. Sometimes, the interventions of psychologists, the testimonies of parents and their entourage, as well as the pleadings of lawyers are not enough. Children find themselves, in many cases, in the heart of the eye of the storm. They sometimes witness violence, without being able to act. The hearing of a child of about twelve years old is reinforced by the consideration of his testimony for the judge’s decision.
The JAF way of doing things
The family court judge, as required by law, must first proceed to the conciliation of the spouses. The civil code provides that the judge receives each of the spouses separately. Part of the conciliation procedure is done without the presence of the lawyers. In practice, the majority of conciliations fail. The lawyer and the family court judge know this reality very well. The lawyer has the heavy task of pleading on the precautionary measures that will govern the situation of the family until the divorce is pronounced. The conciliation hearing is confidential and all the words spoken, even insulting ones, cannot be held against their author. However, the behavior of the parents will help the judge to get an idea of the personality of the spouses. listening to them, the judge will be able to get to know the case better and begin to form what is called an “inner conviction”. However, the judge will not rush. What he was able to learn about the spouses and the realities of their married life will be useful to him during the trial. We speak of “intimate” conviction: the judge will never mention the idea he has of the spouses during the conciliation procedure, this procedure must be confidential. However, his idea will influence, in silence of course, his decision at the end of the trial. the judge will never mention the idea he had of the spouses during the conciliation procedure, this procedure must be confidential. However, his idea will influence, in silence of course, his decision at the end of the trial. the judge will never mention the idea he had of the spouses during the conciliation procedure, this procedure must be confidential. However, his idea will influence, in silence of course, his decision at the end of the trial.
The law is not always sufficient for the proper conduct of legal proceedings, but several elements are taken into account .
