In family disputes, the statements or documents provided by the parties are often not enough to give the judge a clear picture of the facts.
To ensure a fair and well-founded decision, the law allows the Family Court Judge (“Juge aux affaires familiales” or JAF) to order various investigative measures.
These measures, which must respect fundamental principles such as due process and the rights of the defense, are designed to gather all evidence necessary to establish the truth—always with the best interests of the child as a guiding principle when children are involved.
1. What is an investigative measure?
An investigative measure is a court-ordered procedure designed to establish or preserve evidence relevant to a case.
In family law, this may include a psychological or medical evaluation, a social inquiry, or the opinion of a technical expert on a specific issue.
The main investigative measures in family law include:
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- Expert evaluations (psychological, medical, financial, etc.)
- Social inquiries
- Hearing of the child
- Appointment of a qualified professional or notary (for example, in the liquidation of marital property or partition of jointly held assets)
- Family mediation (though not strictly an investigative measure, it may be suggested by the judge as part of the process).
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2. Who may request an investigative measure?
As a rule, it is the parties who request an investigative measure to prove the facts they allege.
However, the Family Court Judge also has the authority to order such measures ex officio if they are necessary to uncover the truth and ensure proper administration of justice.
This power is limited by safeguards:
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- The measure must be legally permissible.
- It can only be ordered if the party alleging the fact does not already have sufficient evidence to prove it.
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3. Due process: a fundamental principle
Due process is at the core of civil litigation and fully applies to investigative measures.
Each party must be able to review the evidence, comment on the measures taken, and challenge the results of an evaluation.
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- Notice to the parties: Investigative measures must be carried out in compliance with due process. The parties (and their attorneys) are notified, may be present during the operations, make observations, and, if necessary, request a counter-expert evaluation.
- Exceptions: Some measures may be ordered without adversarial debate (for instance, by petition), but the party who was not heard must have access to an appropriate remedy to assert their rights.
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4. The main investigative measures in family law
4.1. Expert evaluations
Expert evaluations are frequently ordered to assist the judge on technical or scientific matters (psychology, health, financial assets, etc.).
They remain a tool to provide evidence and do not replace the judge’s power of assessment.
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- Psychological or medical evaluations: These are commonly ordered in cases involving children, such as when determining parental authority, custody arrangements, or visitation rights. The expert (a psychiatrist or psychologist) is tasked with assessing the family and psychological dynamics of the parents and children, not to provide therapy, but to inform the judge’s decision in the child’s best interests. The expert may interview parents, children, and sometimes relatives to evaluate personalities, family bonds, and potential difficulties. The expert’s report is not binding but often influences the judge’s ruling. The parties may request a counter-evaluation within a set time.
- Parentage cases: The judge may order a biological test (DNA analysis). While an individual may refuse, an unjustified refusal can be treated as an indication of parentage, though it must be supported by additional evidence.
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4.2. Social inquiries
A social inquiry aims to provide the judge with insight into the family situation, particularly when determining a child’s residence or visitation schedule.
It may be ordered ex officio or at the request of the parties.
The purpose is to gather information about the family environment and the child’s living conditions to help the judge make a decision aligned with the child’s best interests.
A social worker is appointed to meet with the parents, the child, and possibly other relatives. They observe living conditions, collect information, and draft a report proposing possible arrangements.
The report is shared with the parties, who may request additional inquiries or a counter-inquiry within a specific timeframe.
4.3. Hearing of the child
Any child capable of discernment has the right to be heard by the judge in proceedings affecting them, particularly in cases of parental separation (Civil Code Article 388-1).
The judge may also decide on their own initiative to hear the child.
4.4. Appointment of a qualified professional or notary
In matters such as the liquidation of marital property or the partition of jointly held assets, the Family Court Judge may appoint a notary or another qualified professional.
5. Procedural safeguards: due process, defense rights, impartiality
Due process requires that each party be present, make observations, and contest the conclusions of an expert or appointed professional.
The judge must ensure the impartiality of experts and a fair balance between the parties, in line with European and constitutional standards.
6. Confidentiality and investigative measures
In expert evaluations, confidentiality issues may arise when professional secrets or sensitive information are at stake.
The judge may adapt access to documents or reports to protect legitimate interests while maintaining due process.
7. Special case: Protection orders
In cases of domestic violence, the Family Court Judge may order urgent protective measures for the victim.
Even here, due process must be respected, except in cases of immediate danger, and the judge must base their decision on credible evidence.
Conclusion
Investigative measures ordered by the Family Court Judge are fundamental to ensuring a fair trial and an informed decision.
They must always respect due process, defense rights, and aim to uncover the truth, guided by the best interests of the child and the family.
If you are involved in family court proceedings, it is crucial to work with an attorney to protect your rights and fully understand the potential impact of investigative measures in your case.
For further information or personalized legal advice, please do not hesitate to schedule an appointment.
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