Good Evidence vs. Bad Evidence – What Helps Your CustodyCaseIn a divorce or paternity action, parents often disagree about which of them should have the child more often. If this is happening to you, your first step is typically to discuss the situation with friends and family, who — although helpful — cannot explain what will make a judge decide in your favor.
That is where an attorney comes in. An attorney will explain what evidence (testimony, documents, etc.) will persuade the judge that your side of the story is how he or she should rule.
It is much easier to provide clear cut evidence when litigating financial disagreements than with issues of custody. Your tax returns, pay stubs and bank statements don’t tell the story of why it is in the child’s best interest to be with you more than the other parent.
The first piece of evidence that will assist you is a journal. Any time you believe the other parent is not acting in your child’s best interest, write down the date of the incident, what happened, and who else witnessed it. There are three reasons for this:
1) Your attorney will be able to use the journal for your declaration, a written statement made under oath and attached to your paperwork, which allows you to tell the judge all of the facts supporting your position. The journal will have more details about any incidents and, thus, will be more persuasive to a judge than a general statement that the other parent is absent, abusive, neglectful, etc.
2) The journal will provide your attorney with a list of potential witnesses. A witness is only useful if he or she actually observed any incidents; hearing about it from someone else is not sufficient. Pursuant to California Rules of Court § 5.113(e)witness lists must be served along with the request for order or responsive papers. This means you have to know who you want to come to court on your behalf before your paperwork is even filed! The witnesses can also provide declarations, but they may be asked to testify anyway in order for their statements to be considered by the Court.
3) Finally, you can also use the journal to refresh your own memory when testifying.
You should also provide your attorney with copies of any written communication between you and the other parent which supports your position. This means any emails, text messages, or comments on social media can be used as evidence in your case. So, take screen shots of these messages or comments with your phone, if you think it could be useful. It could be anything ~ from their availability to watch the kids, their choice of schools or activities, or even that they let your child go all weekend without brushing his/her teeth.
Although the other parent’s statements contained in these messages or comments are hearsay (evidence of a statement that was made other than by a witness while testifying at the hearing and is offered to prove the truth of the matter stated), they fall under an exception and, thus, are admissible in court.
Pursuant to California Evidence Code § 1220, evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party….
Basically, that means if you are a party to a case, anything you say out of court can be used by the other side against you. So, be mindful about what you put in writing, as well. This goes for statements to anyone, not just the other parent.
Finally, there are a number of other documents you may wish to give the judge in order to help your position in a custody case. These can include medical records, school records, emails from teachers or friends, etc. Keep in mind, all of these may be inadmissible (because they may not fall under a hearsay exception). You and your attorney may need to come up with a plan to get the information on those documents to the judge in another way. This means you may have to actually have the doctor, teacher or school administrator come to court to testify. This can become expensive quickly with witness fees and time in court, so keep that in mind.
Your best bet is to have the contact information for any potential witnesses available for your attorney so they can write a short declaration for that witness to provide with your initial paperwork. You can’t just count on providing the report card or letter from the physician because the other side will object and the judge can rule that it cannot be considered.
Finally, there are many other forms of evidence you may wish to provide to show your dedication as a parent to your child. Photographs and videos can be helpful in some situations. Your child’s drawings or letters may also be helpful. It will be up to your attorney to help decide how best to convey your case to the judge, and what evidence to provide. The more you prepare and provide to your attorney at the start, the better your attorney can prepare. Otherwise, it becomes a “he said, she said” situation, and the judge will have to decide who is more believable and likely go with that person’s request.