Psychological Evaluation of the Child's Best Interests: The Interpretation of Data in the Preparation of Child Welfare Reports in the New Zealand Family Court

By Fitzgerald, John M.; Moltzen, Natasha | Psychiatry, Psychology and Law, November 2004 | Go to article overview

Psychological Evaluation of the Child's Best Interests: The Interpretation of Data in the Preparation of Child Welfare Reports in the New Zealand Family Court


Fitzgerald, John M., Moltzen, Natasha, Psychiatry, Psychology and Law


Section 29a of the New, Zealand Guardianship Act (1968) makes provision for a judge in the New Zealand Family Court to commission a specialist psychological report when considering the 'best interests' of a child. The purpose of such a report is to obtain expert opinion on a child's current psychological, emotional and social functioning, and to consider the likely psychological implications of various custody and access options. Research within New Zealand and internationally has demonstrated the variability in the content of custody evaluations completed by psychologists, and the extent to which psychological information has an impact on decision-making within the family court system. This article reports data from a survey of psychologists who write s. 29a reports. The focus of the survey was on collecting data that could be compared with those collected by Moltzen (1993) so that changing trends could be observed and, more generally, to gain insight into case characteristics that influence case formulation and recommendations, where these are made.

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In 2002 46% of the 10,292 marriage dissolutions (divorces), approximately 13 per 1000 marriages that occurred in New Zealand involved families with children. With an average of 1.9 children within each of these families (Statistics New Zealand, 2002), approximately 9000 children experienced the separation of their parents by divorce. These statistics have remained fairly stable since the mid-1980s (Pryor & Rodgers, 2001). However, the divorce statistics give only a limited view of the number of children and young people who experience the separation of their parents. Woodward, Fergusson, and Belsky (2000), in their report of young people who were enrolled in the Christchurch Health and Development Study, reviewed data on the timing of parental separation, with or without divorce, and its impact on the attachment between adolescents and their parents. In this study of 953 adolescents aged 15-16 years it was reported that 120 (12.6%) had experienced the separation of their parents before they attained school age, a filrthcr 101 (10.6%) had their parents separate when they were between 5-10 years old, and 71 (7.5%) more had parents separate before the adolescent was 15-years-old. That is, only 661 (69.4%) lived in families where the parents had remained together.

In a majority of divorces/separations involving children, decisions regarding care and corttact of the children are negotiated between the parents. However, where this is not achieved assistance can be sought fiom the Family Court. In a majority of cases, court-facilitated mediation and/or counselling assists the parents ira reaching an agreement. Unfortunately, this is not always achieved and the court may find itself in the position of having to give direction to parents on issues of care (custody) and contact (access).

The basis on which the Family Court, specifically its judges, makes a ruling recognises the rights and needs of the children in addition to the various legal considerations established within the Guardianship Act (1968), associated Acts and case law. However, there is little guidance available for making decisions regarding the psychological, social, emotional and developmental needs of children and young people within a legal context. Maxwell, Robertson, and Vincent (1996) point out that although family law in New Zealand is concerned about the 'best interests of children', this is often complicated by factors affccting the separating parents; for example, matrimonial property arrangements, moving into new adult relationships, and animosity between the parents.

While there is likely to be general agreement about the importance of a number of general tenets, they are not detailed within the Ncw Zealand legislation, which means that it is usually left to the presiding judge and counsel to determine the basis on which the best interests of the child will be assessed, and to the judge to make the required orders and directions on that basis (Henaghan, 2000). …

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