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Data in Custody and Access Disputes
persons start with the premise that if you tell your story often enough, it must
be true. Hence in bolstering child custody and access claims, some parties and
lawyers run about gathering as many affidavits and one-sided opinions as
possible. Trouble is, most are not worth the paper they are printed on. Even
reports from expert sources may not be credible if the data is derived from a
subject to child custody and access disputes are by nature of the situation,
vulnerable. It often happens that parties subject to child custody and access
disputes engage others by sharing with them the nature of the dispute and their
hypothesis underlying the behaviour of the other party. They fear a loss of
their relationship to the children as they had envisioned it. They are often
feeling desperate in this concern and hence are prone to present their situation
in a way that favours themselves over the other party. It may be that they are
innocently venting their upset or consternation, or it may be that they are
trying to induct others to their version of events to curry support of their
position. In any event, the listener, be it family, friend or professional is
only privy to a one-sided account. Typically the account provided is emotionally
laden and hence the listener is prone to accept the partyís version on face
value. In the case of counsellors, it is generally their role to provide support
and hence they may not be prone to challenge a personís version of events.
the face of an emotional account of wrongdoing, many persons, professional and
otherwise, are moved to action to help correct a perceived injustice. However,
in the absence of verifying data or at least contrasting it with input from the
other side, the injustice at risk is justice itself.
assessors are well aware of the above dynamics and that is why, by standards of
practice, they are prohibited from forming a final opinion on the basis of a
one-sided account or data derived or traceable to a single source. Data derived
from or traceable to a single source occurs when one party sees a number of
counsellors, doctors or the like, tell their story and then receive letters of
support from those professional sources, but based solely upon the one-sided
account. No matter how reliable the professional, the data remains one-sided and
hence may not accurately reflect the situation.
data is that which the assessor has tested. Strategies for testing include
obtaining data from multiple sources, discussing and contrasting the data with
the parties and at times confronting the parties on their version of events in
view of conflicting data.
value of credible data is that it can help the parties and courts achieve a more
appropriate resolution to the child custody and access dispute. Credible data
may confirm the presence or absence of abuse claims as well as any other
positions or hypothesis put forward by the respective parties.
risk of gathering one-sided data is that it and the process may contribute to an
escalation in the dispute as now each side feels compelled to out-do the other
in the race to amass support. Further, the process almost requires each side to
escalate their positions and claims so as to restore balance to the perceived
injustice each brings about to the other.
data as obtained by an experienced assessor through an appropriate process has
the advantage of clarifying issues and facilitating a reasonable resolution.
Discreditable data collection runs the risk of escalating conflict and
undermining an appropriate resolution and can also undermine the well-being of
children subject to the custody and access dispute.
Before you run around gathering affidavits and reports, at least remember this: A reasonable assessor can tell the difference between credible and discreditable data and will have concern about a party whose allegations are unfounded or exaggerated.
Direnfeld, MSW, RSW
Call Gary for your next conference and for expert opinion on family matters. Services include counselling, mediation, assessment, assessment critiques and workshops.
For information on Direnfeld's book, Raising Kids Without Raising Cane, click here.
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