Custody disputes between a minor child’s parents, grandparents, relatives, and/or others in a minor child’s life can arise in a variety of different cases – marriage dissolutions (divorces), paternity cases, and guardianships are just a few. Other times, one of the parties involved in a child’s life may petition for a modification of custody under certain circumstances. The type of evidence that you may be required to present may be different depending on the type of case you are litigating and the current custody status of the minor child who is the subject of the custody dispute. However, this blog looks at five key pieces of evidence that are usually important in all types of physical custody disputes.
It is first important to note that there are two types of custody – physical custody and legal custody. Legal custody, generally, means decision-making ability regarding important factors in the child’s upbringing. Usually, these factors mean (1) education, (2) healthcare, and (3) religion. This blog post looks instead at important physical custody issues. Physical custody, generally, implicates with whom the child spends time and resides. Parties can seek different types of physical custody – sole, primary, and joint. Whatever type of physical custody you are seeking, the following types of evidence will usually be helpful in obtaining the result that you want by making your best case in court.
Fact Witnesses. Unfortunately, custody disputes are often contentious and emotional. The actual parties will usually present testimony that paints them in the best light and the other parties in the negative, often leaving a fact-finder (judge) to try to figure out who is more credible when the parties are telling somewhat different stories. It is critical to have witnesses who can testify and provide first-hand accounts about (a) your interaction with the child, (b) the interaction between the child and any other person living with you, and (c) the child’s acclimation to his or her home, school, and community.1 Such witnesses may include a relative or family friend who spends time with you while you and the child are together, a member of your church, a member of the child’s school’s PTA, or a supervisor/instructor/coach for one of the child’s activities. Those who are more neutral, such as teachers, are often more credible and helpful to your case.
Experts. Sometimes, experts are needed to inform a fact-finder, such as the court, about what is in the child’s best interest. Experts may provide testimony about the effect that a certain custody placement may have on the child. Other experts may testify about the behavioral and mental health of the child or one of the parties, including his or her ability to adequately care for the child. This is important evidence because the court must decide custody in a child’s best interests.
Photos and Journals. Courts often hear from parties in a child custody case about how much each parent cares for the child. However, specific instances evidencing such behavior is usually a much better resource for a court. Pictures of you and the child from family trips, holidays, and activities that you perform together are a great way to back up your testimony that the physical custody arrangement you are seeking is what is best for the child. Journals or calendars provide a clear picture for a court; for example, evidence that you and the child went to the zoo last week, supported by a calendar entry and a photograph, is much more persuasive than testimony stating that you and the child “do a lot of things together.” The old adage a picture is worth a thousand words is almost literally true in custody litigation. It shows the child’s emotion and environment and sometimes that of the parent as well.
Evidence of the Child’s Wishes. Indiana Code § 31-17-2-8 provides that a court can consider the wishes of the child who is the subject of the custody dispute, and the court may give stronger consideration to those wishes when the child is fourteen (14) years or older. While usually, parties do not want to open the door to making a child testify in court, sometimes a court will want to hear from the child who is the subject of the dispute. Sometimes, this can occur via what’s called an in camera interview, or a private interview with a judge, to avoid a child having to testify against a party in open court. A guardian ad litem may also be involved in certain cases; these individuals are often appointed to objectively represent a child’s best interests, and they may provide reports or testimony to the court. The court has to decide between all of these what a child may want is in his or her best interests, and thus, GALs and other “adult” experts are often more useful to the court.
School and Medical Records. These records can show the connection between you and the child. While evidence of spending time together and performing activities together is important, showing that you participate in the child’s healthcare and education is critical. Evidence that the child performs well and is healthy in your care or evidence that the child performs poorly and is unhealthy in the care of another can be dispositive of a court’s custody determination.
Raising children is one of, if not the, most important and most gratifying experiences in many individual’s lives, and often, ensuring that a child that we care about is given the best opportunity for a healthy and happy life. If a custody dispute arises, it is important to retain counsel who provides you with a great chance of obtaining your custody goals. With this counsel, it is key to identify and develop this evidence for the trial to have the best chance of winning your custody case. This blog is written by attorneys at Dixon & Moseley, P.C. who handle a full spectrum of custody matters throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.
Ind. Code § 31-17-2-8.
