The Different Types Of Available Evidence
Evidence in a custody case can take many different forms. Many Judges will look at and admit evidence items such as:
- Relevant communications (text messages and emails, for example) from the parents
- Official documents, such as medical files, police reports, or court documents
- Recorded footage, although this can pose a problem if it was taken without the permission of all parties or is not provided in full
- Past histories of employment and involvement in the life of the child; these may take the form of physical evidence presented to the court or the testimony of witnesses
- Evidence that one parent is trying to alienate the child or children from their other parent
- Expert testimony explaining the unique educational or medical needs of a specific child
The following sections will expand on some of the types of evidence commonly used in child custody cases.
Official Documentation
If you believe the other person wanting custody of your child could be a danger to them or their future prospects, one of the best ways to gain sole custody is by providing official proof with detailed information on their wrongdoings in the past.
This could take the form of a copy of their criminal record detailing violence or sexual abuse. It could be police reports detailing abusive, violent, or threatening behavior in the past – even if the charges were never filed.
It is important to note that the law does not force the Judge to decide that custody of your child or children should belong solely to you. However, providing this type of documentation to your licensed attorney will leave them able to create a much stronger case to present to the court.
Witness Testimony
Witness testimony can be incredibly helpful for child custody cases, just like any other civil court case.
Who would be an appropriate witness would depend on the specifics of your child custody case. Teachers who have noticed parental attendance and the behavior of the child can be useful. Similarly, neighbors who may have overheard violence or shouting can make useful witnesses to ensure a dangerous parent is not granted custody or visitation.
If you believe somebody may make a valuable witness, the best thing to do is ask your attorney. They will be able to judge their usefulness and reliability, and then integrate their evidence into your argument.
Expert Witnesses
Often, it can be necessary to bring in expert witnesses to testify. This is especially true if your child has special physical, medical, or emotional needs.
An expert witness is somebody professionally qualified who can shed light for the court on a particular subject. For example, a physician or a child behavioral psychologist may be called to provide evidence for why one of the parents is better able to manage the physical or emotional needs of that child.
Using Recordings As Evidence
Recordings are a particularly tricky piece of evidence that should be employed with caution, and only after speaking directly to your attorney about it.
This is because videos can be edited or taken out of context, meaning it is possible to create a substantial change between reality and the evidence presented. It is only advisable to present recorded evidence that shows a situation in full.
Similarly, hidden recording devices or recordings taken without permission have been known to damage the case of parents seeking custody. Some situations, such as hiding a recording device on your child, will almost always decrease your chances of getting the custody arrangement you desire.
Evidence Of Parental Alienation
It is common for child custody cases to feature accusations of parental alienation.
Parental alienation is where one parent attempts to turn their child or children against the other parent. This can take many forms, such as bribery, overt persuasion, lies, manipulation, and more. Whatever the strategy, parental alienation can cause emotional damage to the child or children – as such, the court and the Judge will usually take a dim view of it.
There are many forms of evidence for parental alienation. These would depend on the approach that the parent has taken, but could include text messages, voicemails, social media posts, witness testimony, or even the testimony of the child or children in some cases.
Testimony Of The Child
The law does permit children to have input into which of their parents is granted custody. This may happen either directly or indirectly.
If the child is twelve or more years old, then they are able to give their input directly. If the child is less than twelve years old but obviously, visibly, or vocally afraid of one of their parents, then this may also be considered by the court when deciding physical custody.
However, it is important not to push your child to say anything they would not naturally and of their own accord. If you do, it can be seen as parental alienation, as described above, and can harm your chances of receiving the parenting plan you desire.
The Factors Considered In Custody Disputes
The Judge will consider certain factors when they are attempting to determine how possession, access, and conservatorship will be legally granted. In order to collect the best evidence, it helps to know how each party will be evaluated.
The most important thing to remember is that the Judge will be trying to act in the best interest of the child. From this standpoint, the following factors will be evaluated:
- Whether either parent could be a potential danger to the child
- The stability of each parent
- The already-established parent-child relationship with each of the parties
- The physical and emotional needs of the child, and each parent’s ability to fulfill them
- The proximity of the family
- The child’s wishes, if they are twelve or more years old
The following sections will explore each of these in more detail, including elaborations on what evidence could look like in each situation.
Potential Danger Posed By Parents
One of the most important and very first factors assessed by a Judge in a child custody case will be the child’s safety – as this is a cornerstone of protecting that child’s best interests.
Danger, in this context, could mean many things. Primarily, it refers to any history of abuse, family violence, or drug or alcohol misuse.
If you believe that the other parent could be a danger to your child, the likelihood of the court believing you depends on the evidence presented.
You may wish to supply emails, text messages, social media posts, or even diary entries – whatever appropriately displays the behavior of the other parent, as long as you show your attorney beforehand to check the suitability.
Certifiable documents such as police reports and medical records can also act as strong evidence in this area.
If you are a parent who has a history that could be construed as dangerous by the other party, you will not automatically be denied parental rights. Instead, you will need to work hard to provide further evidence that you have altered and corrected your previous patterns of behavior.
The Stability Of Each Parent
Again, when considering what is in the best interest of the child, the stability of each parent’s household will be assessed.
This is not usually an area where you will need to provide specific evidence, as the Judge will look at each parent’s ability to maintain employment and provide stability for their child. These factors will be assessed in the context of the present and the historical past.
However, if you have evidence that you do not believe would come up naturally, such as forms of proof that the other parent lives an unstable life, this could be helpful to use against the opposing party.
The Parent-Child Relationship
The Judge will look at the child’s relationship with each parent when determining what type of custody arrangement is in their best interest. Usually, this will include a detailed look at the involvement of each parent with their child’s life.
In this category, evidence of the following activities can be extremely helpful:
- That you take them to appointments with the doctor, dentist, optician, or other similar responsibilities
- That you attend important events such as parent’s evenings and other academic responsibilities
- That you show an interest and attendance in extracurricular activities, such as football clubs or other sports games
A Judge will often not rule explicitly against you if you are forced to work through a lot of these types of events. However, this may make it less likely for you to be designated the primary residence.
The Physical And Emotional Needs Of The Child
The Judge will also calculate their final decision based on the ability of each parent to meet the physical and emotional needs of their child. Again, this will be considered in the context of the present as well as the future.
Essentially, this means putting the needs of the child before their own needs, as well as being able to adapt as these needs change.
As many studies have proven that children have a greater chance of healthy development when both parents are present in their lives, the Judge will almost always try to make this happen – as it is in the best interest of the child.
As such, if one party attempts to prevent the other from having joint custody or visitation rights at all costs without good reason, this can be evidence that would count against them.
There are exceptions to this, of course. It would make sense to attempt to prevent one parent from seeing their child if they were violent or abusive, and contact would significantly impair that child’s emotional or physical health. However, if you have evidence that the other parent is attempting to alienate your children from you, this could be seen as evidence of that parent not respecting their emotional needs.
The Proximity Of Family
As mentioned above, when considering what is in the best interests of your children, most Judges prefer to keep family bonds intact wherever possible. This extends to other family members, such as grandparents, uncles, and aunts.
For example, if the other parent wanted to take your children to live with them several states away, the Judge may determine that this would too severely damage family ties and deny primary residence to that parent.
As such, any evidence that you can provide of the strength of family ties and the location of these family members may be useful for your case.
The Preference Of The Children
It may surprise you to learn that the legal process to determine custody does also consider the preferences of the children involved, as long as those children are at least twelve years old and are able to express their reasoning.
However, it is up to the Judge to decide how strongly to weigh the evidence of a child’s opinion. Just because a child prefers one parent, that does not necessarily mean that parent will receive primary custody.
