In a child custody matter, any witness who can help the trier of fact determine the best interests of the child will be able to testify. Any person who has personal knowledge from which to testify can be called as a witness. Experts do not need to have personal knowledge but can give their opinion based on data and the review of information as well as from personal knowledge. Experts must meet the criteria for being able to speak as an expert, they must have a specialized knowledge which will aid the trier of fact. When you decided to go to court on the custody issue, there may have been a lot of people who told you they would come to court for you or help you in any way they could, but now that it is time for them to come forward, they may no longer be willing to help.
A case is based on the testimony of witnesses and evidence presented. Pleadings are not evidence, nor is the litany of information provided by people who have definite opinions but “don’t want to get involved”. Unfortunately, this state of affairs has been going on for years, “Everybody said they’d stand behind me when the game got rough/But the joke was on me, there was nobody even there to bluff/I’m going back to New York City, I do believe I’ve had enough.” (Bob Dylan – Just Like Tom Thumb Blues).
In order to prevail in a child custody matter, you will need to convince the court that it is in the best interest of your child that custody is granted to you. Hopefully, both you and your spouse are good parents who love your children and are, in turn, loved back. Usually, cases in which that statement is true, settle before they reach court. So it is important that your witnesses are able to paint a picture of you and your relationship with your children to the court.
General Rules for Witnesses
Witnesses are not usually gifted with an understanding of the legal process or an ability for painting a picture with words. We love images, pictures, human touches. Judges are no exception; the judge wants to see a true picture of you as a parent. Every witness you call, including yourself, should be able to add to the picture of you as a good and competent parent. Here are some guidelines for all witnesses:
- Dress appropriately for court. You need to be neat and clean and dressed in a manner that will let the court know that you consider being in court to be an important matter. Dress comfortably but in something similar to what you would wear to a job interview.
- In the courtroom do not make comments, sounds, or faces when a witness is testifying. Do not shake your head or say things under your breath. Do not accost any of the other side’s witnesses while in the courthouse. The judge sees you and doesn’t like it.
- Do not lie.
- Do not give smart ass answers. For example if you are asked “Are you his girlfriend?” Do not say “Well, I’m a girl and I’m his friend.” Do not answer in such a way that on paper it would look like you were giving just the opposite answer. For example, if you have already testified that your plane landed in New York City at noon on January 8 and the attorney asks if you went to John’s house in Raleigh on January 8 at 2:00 in the afternoon, Do not say, “Oh, yeah, I jumped right on the next plane back to Raleigh so I could be at his house by 2” Just say “No, I was in New York.”
- Speak up, the courtroom is large and there can be other noises, everyone needs to hear you.
- If you need a break or a glass of water, ask the judge. No one wants you to be uncomfortable.
- If you don’t know the answer, say you don’t know. If you can’t remember saying you can’t remember. If you do remember, answer the question asked, don’t lie.
- Answer the question asked; don’t answer the question you wish the attorney had asked. Unless it is important to your answer, don’t go into unnecessary detail. For example, if you are asked if you wore the red dress to the party, don’t say “I was really thinking that the blue dress was the one I wanted to wear but my friend, Cindy, said she was wearing a blue dress and, you know, I didn’t want to look like we were trying to be twins or like I wanted to show her up so I went shopping and found that red dress.” Just say “yes.”
- Don’t leave out important details. For example, if you are asked what you saw John doing on Saturday at 4:00 don’t say “I saw him push Bruce so hard that they both fell on the road.” But do say “a car was coming down the street really fast and Bruce didn’t see it and started to cross the street so John yelled, “Hey, watch out!” and pushed Bruce out of the way of the car and they both fell on the road.”
- Every point that is important enough for you to make should be important enough to be supported by an example. Unless all you are seeking is data, you should take the time to humanize yourself for the court.
- Avoid bad language or slang.
Child Custody witnesses usually fall into several categories.
A) You And The Other Parent
By far the greatest amount of testimony in a custody case will be from the parties. You are the two people who spent the most time with the child, who observed what the other did in private, who experienced the day to day events that made up your child’s life. Accordingly, both parents should be prepared for extensive examination by each attorney.
You are your best witness. Write out the history of marriage and the history of custody. Use this document as your basis for building your case. Often times it will include insights and facts that you had not realized or had forgotten. Your attorney should sit down with you and go over the strengths and weaknesses of your case.
B) Parents and Relatives
Even when you think that the other party’s relatives will support you, remember, blood is thicker than water. If your own mother won’t stick up for you, who will? Call them up and see what they say. Unless your spouse’s relative comes out and says I want to testify for you, think twice about calling them as your witness. However, without actually aligning themselves with your side, the in-laws may be a true aid to your case. The relatives who would rather say the sun sets in the east than say anything bad about their kin should be treated politely and briefly unless they had something substantive to say. Don’t get pulled in to extraneous matters that rile parties but are unimportant to your case.
C) Friends, Neighbors, and Co-workers
As discussed earlier, these witnesses are dull and add nothing to your case unless they can illustrate their testimony by examples. Your attorney should interview and prepare these witnesses in advance. It is often helpful to send the questions you will ask a witness to the witness ahead of time. This practice helps calm the nervous witness and will let you know if you have any details wrong before the witness is on the stand.
D) Teachers, Coaches, and Day Care Providers
You should know the names of the children’s teachers, daycare providers, coaches, and others having frequent contact with the children. Find out who these people are and what they have to say about your child. Not knowing the daycare provider does not make a person a bad parent. Often times family chores are broken up so that one party has the duty to take the kids to daycare and pick them up after. This system can work just fine with one parent informing the other of the daily reports. However, when you get to court for custody, the one parent portrays him/herself as the concerned parent and the other as the incompetent one. When separation occurs, it can be difficult for a child. You should make it a point to visit the school and others the child sees frequently to let them know what is going on and make sure she/he is included in sharing information about the child in the future. Teachers and others can show the court who has been the primary caregiver as far as interaction with them is concerned. This information can be very important to the court, especially if a child has special needs or a parent’s lack of involvement is dramatic.
This category includes clergy, doctors and dentists, police, private investigators, friends of the children, or anyone who has information which can aide the trier of fact. The witnesses are case-specific. However, every parent should know who and where the child’s doctor is, the specific state of the child’s health, medications taken, allergies and problems. A parent should know the names of the child’s friends, and activities that interest the child including television shows, books, extracurricular activities, etc.
Experts in child custody matters usually include the psychologist or evaluator, perhaps a doctor or person who can explain about a child’s medical condition or special needs. Non-controversial experts, such as a doctor who would explain the child’s diabetic condition and the daily medical requirements to keep the child healthy could testify by affidavit or video deposition by mutual agreement.
Your attorney should evaluate the strengths and weaknesses of your case and formulate a case plan. Nothing is more difficult for a judge to follow than a disjointed examination that jumps from one topic to another.