When, as approved private detectives, we deal with a problem inherent to the family sphere (adultery, divorce, parental authority, child custody, alimony, compensatory allowance, community of life, etc.), we know that the result of our work of gathering evidence is likely to end up in the hands of a family affairs judge, who, without a doubt, will read our report carefully, will appreciate its content, and we expect it as much as possible, will rely on it to base its decision and resolve the dispute.
An essential judge in the settlement of disputes relating to family law, the Family Affairs Judge (JAF) is a paradoxically little-known figure. What exactly is its role? What use is a private detective report in a family matter? Can we produce a private detective report before the JAF?
Focus on a jurisdiction in which private detectives play a decisive role.
Role of the Family Court Judge
The Family Affairs Judge (JAF) is a magistrate specializing in family matters. He has jurisdiction over most disputes or matters affecting the family. Established by Law No. 93-22 of January 8, 1993 amending the civil code relating to civil status, the family and the rights of the child and establishing the family affairs judge , the Family Affairs Judge has succeeded, since 1993, to the matrimonial judge. A judge with transversal skills, the JAF is the magistrate par excellence dedicated to complex questions inherent to the family sphere (couple, child, family, heritage).
The powers of family court judges are essentially provided for by articles L213-3 and L213-3-1 of the judicial organization code . Indeed, he is competent to know:
"1° Judicial approval of the change of matrimonial regime, requests relating to the operation of matrimonial regimes and joint ownership between persons linked by a civil solidarity pact or between cohabitees, the judicial separation of property, subject to the powers of the president of the judicial court and of the guardianship judge for adults;
2° Divorce, legal separation and their consequences, liquidation and sharing of the property interests of spouses, persons linked by a civil solidarity pact and cohabitees, except in the event of death or declaration of absence ;
3° Related actions:
a) To determine the maintenance obligation, the contribution to the costs of marriage or the civil solidarity pact and the contribution to the maintenance and education of children;
b) The exercise of parental authority;
c) The revision of the compensatory benefit or its payment terms;
d) Change of first name;
e) Protection against the spouse, the partner bound by a civil solidarity pact or the violent partner or a former spouse, partner bound by a civil solidarity pact or violent partner;
f) For the protection of adults threatened with forced marriage.
4° Requests for granting temporary enjoyment of the family's housing to a cohabiting partner in application of article 373-2-9-1 of the civil code. »
“The family affairs judge exercises the functions of guardianship judge for minors.
He knows :
1° Of emancipation;
2° The legal administration and guardianship of minors;
3° Of the guardianship of the wards of the nation. »
Judge of family disputes, the powers of the JAF have been broadened, over time and reforms, to a vast scope of attributions, including the strengthening of emergency protection functions in the face of domestic violence. If he does not know, however, questions relating to educational assistance measures for minors in danger, or the delinquency of minors, devolved to the Children's Judge, nor matters relating to protection regimes for adults, devolved to the Judge guardianship, nor questions concerning adoption or inheritance, the JAF occupies a preponderant place and plays a pivotal, not to say central, role in what should be called family jurisdictions attached to a court judicial.
Referral to the JAF
The Family Affairs Judge can be contacted by way of petition or summons . The competent family court is then that of the family's place of residence, or in the case of separate residence, that of the child's place of principal residence or, failing that, that of the defendant. The representation of a lawyer, although strongly recommended, is not always mandatory, except for divorce applications.
The procedure before the Family Court Judge is said to be “oral” and adversarial. The orality of the procedure here does not refer to the absence of writing or formalism, but to the way in which the claims and arguments of the parties are presented before the Judge during the hearing. Indeed, the latter, personally or through their lawyer, orally present their requests and claims and mutually present their evidence and supporting documents.
Prior to the holding of the hearing, which takes place behind closed doors of the JAF office, which decides at a single seat, the parties will have obligatorily exchanged documents and documents, for the purposes of respecting the principle of adversarial proceedings. which scrupulously watches over the magistrate. If one of the parties does not respect this prior communication of the documents, the judge is not required to take into account a document not communicated or sent late, and may decide on a referral in order to allow the other party to become aware of it.
During the hearing, the JAF hears the parties, and leads the debate while ensuring respect for adversarial matters. It is often said, and falsely moreover, that the hearing before the JAF is an opportunity for a major marital unpacking, and the cinematographic presentation of this encounter often gives a theatrically laughable image. In reality and most of the time, the hearing before the JAF takes place in the most absolute serenity, the Judge then ensures the solemnity of the debates and mutual respect. In order to resolve the dispute, for which he is responsible, the judge may be required to ask any questions useful to the manifestation of the truth, guided by guiding principles, such as, among others, fairness and the preservation of best interests of the child.
If, for example, the dispute concerns the terms of exercise of parental authority , the JAF may be required to request any information relating to the parents' plan with regard to the child: choice of schooling, leisure, residence, arrangements made by each parent with regard to the rights of the other parent, professional situation, availability for the child, previous family organization, aspirations moral and philosophical of each, etc. It sometimes happens that the JAF's questions are disconcerting due to their level of precision, which does not hesitate, for the sake of judicial truth, to probe the intimacy of the couple or the household, and all the more so when the case is conflictual, or when the interests of a child are at stake. However, it is appropriate to temper and remember that this effusion of the magistrate over the lives of the parties to the dispute is not only healthy from a legal point of view (this allows establish the truth in order to resolve sometimes inextricable situations), but also regular taking into account the prerogatives of the magistrate, who is sovereign in his power of appreciation and free in the conduct of the debates.
What evidence can I produce before the JAF?
“Proof” is an essential concept in French law. It is the very basis of all justice, of which it is consubstantial. We might as well say it clearly, a fact, a claim, an argument or a legal claim, without evidence to support it, simply does not exist and can never prosper. According to the old Roman adage “ Idem est esse aut non probari”, it is the same thing not to be or not to be proven. Whether in civil, criminal or commercial matters, “proof” is a fundamental element, if not the central nerve.
In family litigation, whether in matters of divorce , child custody , compensatory allowance or alimony , and more generally in civil proceedings, the proof is said to be free and can be provided by any AVERAGE. “It is the responsibility of each party to prove in accordance with the law the facts necessary for the success of its claim” (art.9 of the Code of Civil Procedure). The judge, guarantor of the impartiality of the debates and respect for adversarial matters, has the role of resolving the dispute and drawing conclusions on the basis of the elements submitted to him. However, for evidence to be admissible, conditions must be respected, which are established by law and case law:
Condition of lawfulness : proof must be lawful. Evidence obtained by violation of the law, either by coercion, violence, threats, blackmail, corruption, or in violation of the person's rights to respect for their private life is inadmissible;
Condition of loyalty : the proof must be fair. Evidence obtained by resorting to trickery, fraudulent maneuvers or deception is also inadmissible. Condition of proportionality : the proof must be obtained using means proportionate to the aim sought. Condition of necessity : the proof must be directly linked to the alleged fact, the claim supported or the interest defended. Proof only has meaning in relation to an alleged right or an alleged obligation. Evidence that has no connection with the object sought is useless, because it simply is not evidence.
For example, audio recordings obtained without a person's knowledge and consent, image capture in a private place, telephone or messaging consultation without authorization, theft of passwords, geotracking , violation of correspondence or secrecy, are strictly prohibited. (A very recent change, however, admits certain methods of proof deemed unfair, particularly in cases of domestic violence. This is the case, for example, of clandestine audio recording which in certain circumstances of violence within the couple can be admitted. This inflection does not yet constitute a rule and remains an exception).
Provided that they have been obtained in compliance with the conditions set out above (lawfulness, fairness, proportionality and necessity), the documents set out below may be produced in the civil trial as evidence (non-binding list). exhaustive):
Third-party certifications
Letters, letters
Invoices
SMS, emails
Social media content
Bailiff's report
Audio recording
Bank account extract
Doctor’s certificate
Employer certificate
Contracts
Photographs
Administrative documents
Expert report
Private detective reports
What about producing a private detective report before the JAF? Is a private detective report admissible in family matters?
Let us say it without delay and frankly, the law authorizes the production of private detective reports as procedural documents in support of a civil action and these are entirely admissible.
The question relating to the admissibility of private investigation reports before a court is no longer debated today. Consistent case law since 1962 confirms the sui generis admissibility of investigation reports, provided however that they present the guarantees of proportionality, impartiality, objectivity, and that the information mentioned or the facts observed are detailed, devoid of infringing nature and obtained in a legal and fair manner (absence of fraud or invasion of privacy). These conditions met, the investigation reports produced by an approved detective are admissible and can be debated by the parties and assessed by the Judge in the same way and under the same conditions as any documents legally produced in support of a request.
Private detective reports are most often used to support a legal argument, defend an interest, actually support claims or confirm presumptions on which the resolution of a dispute may depend. This is also their usefulness: they make it possible to shed light on the debate on the basis of legally obtained factual elements.
Today, private detective reports in family matters are used more and more, in particular to prove adultery , or more generally a marital fault, to reveal an educational deficiency or a situation of mistreatment, to note a violation of a parental right , establish the reality of a professional situation, uncover a concealment of assets or income, demonstrate an expensive lifestyle, an illegitimate community of life, abandonment of home, or any other factual element inherent to the family sphere and for which justice, without a doubt, is eager. The Family Affairs Judge (like any magistrate, for that matter), generally knowing only what is submitted to him by the parties, can sometimes be very attentive to the reports of private detectives for the simple fact that they allow us to draw up a faithful and detailed portrait of a given situation and consequently facilitate the objective understanding of a legal fact.
Convincing the judge of the merits of a request being the ultimate objective of legal action, the expertise of a private detective can constitute a real lever for success and make all the difference. Nowadays, more and more court decisions are based on reports from private detectives, giving them an increasingly greater role in the procedural landscape.
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