The best evidence you can possibly bring to court is proof that you are a good mother or father, a decent person, and a fair, sharing co-parent. So, first and foremost, be a good parent and act the right way even if the other parent does not. Do not send mean, foul messages that will end up being shown in court. Do not say things you will regret saying whether in person or on the phone because you might be recorded. Do not let the other parent push your buttons and provoke you into saying or doing something you will regret. Just be a good parent and a nice, decent person throughout your custody case and the evidence of that will be easy to present.
Judges and juries make decisions based on evidence. The Texas Rules of Evidence determine what sorts of evidence are allowed to be used in court. Most significantly, witnesses in court are usually only allowed to testify about what they personally saw or heard (or smelled on rare occasions). If I am called as a witness in court, I can tell the judge about seeing a couple yelling and cursing at each other while their young child was crying if I actually saw and heard that scene. I cannot tell the judge what my neighbor saw in the same incident because that would be “hearsay.” Generally, hearsay cannot be used as evidence. You cannot tell the judge what your child tells you happens at the other parent’s house. You cannot play a recording of your daughter saying how mean her father is because that would be hearsay. You cannot give the judge letters written by neighbors and co-workers about what a great parent you are because those letters would be hearsay. Your lawyer would need to call your neighbor or co-worker as a witness in court to testify under oath and be subject to cross-examination by the other lawyer in order to allow that evidence into court.
The hearsay rule keeps you from saying what other people have said out of court (for example – “our pastor says Mary does not seem to be very interested in being a mother”). However, you can usually repeat what people say out of court that is not true if the purpose of the testimony is to prove something else. For example, testimony that your son came home from visiting his mother and immediately began calling Dad’s girlfriend the “fat cow” Would probably be allowed. Telling the judge what your son said would not be done to prove the girlfriend is a hefty bovine but rather to raise the assumption that your son’s mother has been talking bad about the your girlfriend to your son.
Every rule has exceptions and so does the rule against hearsay. You can tell the judge what your husband said because in a divorce case he is your opponent. An e-mail or text message the other parent sent can usually be used in court under the same exception to the hearsay. On the other hand, an e-mail from your child’s teacher would be hearsay and could not be used in court.
School and medical records and police reports might be full of second-hand hearsay, but they might be admissible if your attorney files the records with the court along with a business record affidavit – or the person in charge of keeping those records testifies in court.
It is important to remember what you must prove in court to win custody of your child before you consider what evidence your lawyer needs to help win your case. The legal question before the court is – “what is in the child’s best interests?” So, concentrate on what and who is best for your child and not which parent is the most horrible human being. Evidence of how involved you are with your child and his or her school and activities, how close you are with your child, and what you have done in the past for your child is what you should focus on. Of course, if there is a big problem with the other parent, then that must be discussed also and proven. But, focus on yourself as a parent and what is best for your child when considering what evidence is needed to win your case.
Evidence mostly comes from the words spoken by witnesses in court. The two most important witnesses are always the parents. Calling your own mother to say how great you are as a parent seldom helps much because that is what the judge expects your mother to say. However, the judge will certainly sit up and pay attention if your husband’s mother comes to court to testify against him. Or, if for instance, your mother lived with your family for a while and she saw firsthand who did what around the house, or how the other parent yelled and treated everyone badly, or retreated to the bedroom and was uninvolved with the kids – then she might be an important witness. Sometimes parents have moved back with their parents and the grandparents help care for the children. Brief testimony from a grandparent might reassure the judge, for example, that the young 24-year-old Dad has the help he needs to care for his toddler daughter.
A few friends or neighbors who have personally been around you and your child might be helpful witnesses if they can truthfully say they have seen you and your child interact frequently and recently. A softball coach or piano teacher might also be able to say how involved you are as a parent.
The child’s counselor can be a very important witness in a child custody.
Click here for a more detailed discussion of the child’s counselor.
A parent’s counselor seldom is helpful in court unless you need to prove you are not crazy or that you have shown great improvement in your anxiety since you have ceased to live with your spouse.
It is seldom worth the expense to have the child’s doctor take off work and come to court to testify, but sometimes pediatricians and emergency room doctors testify in cases of abuse (or in cases where abuse did not really happen but is alleged).
Teachers often know younger children better than anyone other than the parents. A teacher can explain what sort of child the kid is and perhaps discuss how the child is after spending a weekend with one particular parent. A child with learning or behavior problems usually needs more help from parents than usual and a teacher can testify about which parent has been involved and helpful with the child and which has not.
Your boss probably does not need to be a witness, but sometimes supervisors come to court to testify about work hours, the flexibility of the work schedule, or the fact that overtime pay is not going to happen in the coming year (when child support is in dispute).
Evidence can also be photographs, recordings, emails, text messages, social media posts and records from schools, counselors, doctors, and the police. Here are some examples of physical evidence that is often used in child custody cases:
- Photographs or short videos of happy children doing things with their parent or enjoying their extracurricular activities. I encourage my clients to get photographs of their children doing chores, reading, or playing games with them, along with photos of their room, house and school. Short videos of the child doing these sorts of things might also be used, but the judge does not have time to sit and watch any video more than a few minutes long.
- PLEASE DO NOT VIDEO OR RECORD YOUR CHILDREN TALKING ABOUT THE OTHER PARENT OR WHAT HE/SHE DOES WRONG OR WHY THE CHILD DOES NOT WANT TO LIVE WITH THAT PARENT. That kind of video is not admissible because it is hearsay and it usually makes the parent who made the video look bad.
- Photographs of damage done to the house by an angry parent or images of bruises and injuries if there has been violence.
- E-mails and text messages from the other parent are very often used as evidence. Relentless, repetitive messages or angry, demeaning messages can make the sender look bad and confirm what the other parent testifies about their behavior.
- A recording or video of the other parent acting badly, such as yelling or cursing or saying bad things in front of the children can be very powerful. It is legal for you to record if you are there or are part of the conversation. In Texas, you do not have to tell the other person you are recording. However, you cannot leave a recorder and make a secret recording if you are not there – that would likely be illegal.
- Security video or Ring camera video of bad behavior by the other parent can sometimes be very powerful.
- Social media posts can tell the judge a lot about a person. Have someone look at your spouse’s or ex’s social media. You should be very careful about what you post and maybe you should just stop posting or commenting completely while your case is going on.
- Pediatrician’s and dentist’s records may show which parent took the child to appointments.
- School and medical records may provide useful information about your child.
- Daycare and preschool records may confirm which parents takes the child or picks the child up.
- Phone records may give some idea of what your spouse is doing (calling and texting his girlfriend 52 times on the Sunday he has the children, for example).
- Bank and credit card statements may show how the other spouse is spending their money.
Your attorney and paralegal will help you determine which evidence will best assist them in proving your case.
Again, you need to be careful not to create evidence that the other parent can use against you. So, be very careful about what you say and write and how you behave at all times
A few final words about recording: do not be that crazy parent who always has his or her phone out recording the other parent or the kids when the other parent is around. Every recording you make is evidence and you cannot destroy, delete or edit the recordings you make without keeping the original – which will probably have to be turned over to the other side.