Risky Business: Trial Issues in Child Custody or
Medea and Ulysses Get Divorced

Victoria Bender

Many years ago, when I was a new attorney, a more experienced attorney told me a story about an early trial. The plaintiff, a young woman had tripped over a display in a store and cut her Achilles tendon. After a 1 day trial, the jury came back with a verdict that pleased the young woman’s attorney greatly. A member of the jury came up to him afterwards and said it was a shame about the young woman, he agreed. It was sad that such a thing could happen in a store, he agreed. The juror was sorry the award was so small for such an injury. The attorney, who thought the verdict was more than adequate, said he was thankful the jurors had done such a fine job. Then the juror shook his head sadly and said “It’s a wonder she didn’t become pregnant.”

Taking a case to trial is always risky. Before you go to court, be certain your client understands both the risk and the cost of going to court. A custody trial is the most wrenching trial a parent can sit through. The client will hear and will say things about the abilities of the parties to parent their children. Errors and imperfections will be magnified, isolated incidents will turn into habits and future fears, true problems will be trivialized and explained away. The judge will listen, attentively or not, to hours, days or weeks of testimony and will make a decision that will certainly not please everyone, and probably not please anyone. And the financial and emotional cost will be enormous, both to you and your client.

Assuming that you have discussed all these matters with your client, reviewed the evidence, and taken your role as counselor at law as seriously as your role of advocate, you are ready to form your trial plan. Whether you are a seasoned veteran or a new attorney, each case should be planned and crafted into a logical progression of testimony. You are building a case, first with a firm foundation, then with attention to detail and craft until you have a structure that the court will want to buy.

I. Court Services Recommendations/Custody Evaluations

A. Mediation

In North Carolina child custody mediation is required before setting a matter on the trial calendar. (NCGS 50-13.1(b))Many matters can be settled at the mediation level, an outcome satisfying to both the parties and the court. A client can do much better at the mediation if the client receives advice and information before attending the mediation session. While the actual process differs from county to county, most are similar. Wake County requires two sessions, the first is for general orientation where the parties see a movie about how they should get along for the best interest of the children and they then set a return date to meet with the mediator. The mediation sessions last approximately one hour. In rare situations, a third session may be possible. Except for criminal matters or child abuse, statements made in mediation are absolutely privileged. An agreement reached at mediation is known as a “Parenting Agreement” and is deemed to be a custody order.(NCGS 50-13.1(h))

Before sending a client to mediation, meet with the client and give your client an overview of what will happen. Explain that this is the chance they will have to avoid trial. Over the past few years, I have come up with the following instructions to my clients:

Do not rehash what went wrong in your marriage, this is not a counseling session.
Bring two things with you to the mediation: your best case scenario, and your bottom line. Settle for anything in between those two places.
Do not forget what your concerns are. If it is alcohol, stay firm on your requirement that there be no drinking around the children, if it is making decisions about religion, put in that you will be the decision maker on that issue, whatever is important to you, this is the time to make sure it is in there because once it becomes an order, you cannot add terms. If you are the party against whom the restriction is sought, consider if the rule is justified or if you can live with it, if appropriate, make it mutual.
Remember you do not have to agree. If the other side will not move from his or her position, you do not have to agree with it.
Remember you can compromise, even if the other parent never gave a bath or changed a diaper, that doesn’t mean he or she can’t do it. If the inactive parent turns into Super Parent, it may be a better situation for the child than when you were together.
Regardless of what they say at mediation, it is not that easy to change the parenting agreement once it is entered. Do not agree to something that you can’t live with.
Even if you and your child’s other parent are getting along really well and hope to get back together, enter into the mediation as if that is not going to happen. You need to craft an agreement that you can use if/when you are not getting along.
Be mindful to the time asked for. If the days requested by the other parent miraculously total 123, or, on the other hand refuse to budge past 121, it is probable that money is guiding the desire for time. Don’t deny time based solely on money considerations, but be mindful of these issues.
Child Custody mediation does not include settlement of child support, nor is the right to visitation conditioned on payment of support.
Visitation is not your child’s choice. It isn’t fair to anyone, parents or child, to place such an important decision in the hands of a child. You wouldn’t let your child decide not to go to school, or not to wear his seatbelt, this decision isn’t his to make either. But be mindful that your child has emotions, too. It may be that you child needs to heal from the separation, or from the alienating behaviors of a party. Try to set up a plan that will work, building towards more, not less time with each party.

B. Custody Evaluators

Long before you reach trial, you have made decisions as to the direction of your case. In most cases, a custody evaluation is unnecessary. It will merely state that both parties are good people, have strengths and weaknesses which make them human but will not be major factors in their ability to parent. Most of these cases will not reach trial. In an article entitled “American Psychological Association Guidelines for Child Custody Evaluation” which appeared in the July 1994 issue of American Psychologist magazine (Volume 49, no 7, 677-680) the APA set out custody evaluation guidelines and cited a 1987 paper presented by Melton, Petrita, Poythress & Slobogin which found that 90% of all divorce custody matters are settled by agreement. However, a significant number of cases can benefit greatly from a custody evaluation. These cases include a) cases where there has been a significant change in past conduct (i.e. sobriety, maturity, change in life goals, etc.) b) cases where a problem exists but is hard to prove without test data or expert evaluation (i.e. closet alcoholic, child alienation, paranoia, etc) c) cases where false allegations have been made (i.e. sexual abuse, inappropriate discipline or other conduct). If the opposing attorney and client will not agree to a custody evaluation, make a motion for such an evaluation under NCGA 1A-1 Rule 35. Often times the moving party will have to foot the bill, which can be significant.

Regardless of whether your client is the party requesting the evaluation or an unwilling participant, urge your client to participate in good faith, and cooperate fully with the evaluators. These people will produce a report which will have great weight with the court, the better your client looks, the better it will be for him or her. While evaluators try to be objective, it is impossible for any report to be written about another person that does not include some subjective judgment. Nor would we, as members, of society, wish for a decision that did not include personal observations and evaluation. Custody evaluators have a list of standards and guidelines which they follow. Your client should have been given a statement of the guidelines or the intent of the evaluators, or you may retrieve one yourself from various web sources.

When you receive your copy of a custody evaluation, both you and your client should read it carefully. Mark any areas of disagreement or areas where you have questions. Call the evaluator and ask for further clarification of these points. If the recommendations do not seem to follow from the evaluation ask the evaluator how they came to the recommendations. If the recommendations and/or report seem off the mark, hire an expert to review the data, ore repeat the evaluation if possible. The test data should be objective enough to be reviewed by another trained expert. It is discoverable, and should be able to withstand review. NCGS 8A Rule 702-704 governing expert witnesses allows for testimony where the testimony would be helpful to the trier of fact. Such opinion need not be based on personal observation, but on data, hypotheticals, or listening to evidence at trial.

II. Witnesses

North Carolina General Statutes Chapter 8 governs evidence. 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. However, lay witnesses must have personal knowledge from which to testify. Experts do not need to have personal knowledge, but must meet the criteria for experts. The evidence code and applicable statutes are a subject for an entire CLE and cannot be adequately addressed in a short presentation. Rather, this article will discuss different witnesses available to a trier of a custody case and how such testimony can be used.

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”. Start your case by deciding what type of evidence you wish to present to the court. 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 formulate your plan, make it have a logical structure, and do not deviate from that structure. Do not feel the need to follow every red herring your opponent places in your path. If a matter needs to be addressed and you have not done so in your prepared examination, decide where it best fits, address it, and a move back to your planned examination.

Witnesses are not usually gifted with an understanding of the legal process or an ability for painting a picture with words. A general phone call to a witness will go something like this:
[XX= Attorney XY= Witness]

XX Hello, is this Janey Doe? This is Suzie Lawyer, Sam Smooth’s attorney, I think he told you I might be calling? Do you have a minute for me to ask you a few questions? Great! [then we usually get background information name, address, home and work phone #s, relationship to client, how long they have know each other] Have you seen Sam with his daughter, Samantha? How often?
XY Yes, maybe every two weeks or so our kids play together and one of us ends up going to pick up the kids and we’ll talk for a few minutes.
XX What kind of relationship does Sam seem to have with Samantha?
XY Good
XX What makes you say that?
XY He seems to love her and you can tell he really cares about her.
XX Does he do anything that makes you think that?
XY No, not really, it’s just that you can tell, they really care when they are together.

This testimony is about as interesting a Aunt Tessie’s gall bladder operation and less informative than Aunt Tessie. It doesn’t put a face on your client, doesn’t make it appear he really cares, really loves Samantha. Most judges are going to assume that, unless you have a very rare case, your client loves his child. Right now all Janey has shown is that she is willing to come testify for Sam, which says a little, but not too much. We love images, pictures, human touches. We want to see Sam and Samantha not just anyone. At this point tell the witness that it helps if we can give some examples. Can she think of any particular incident that would show what she means. Give some obvious examples Did she run to his arms and immediately start talking about her day, did she make him a picture, was he concerned about the scratch on her knee. Usually the witness will recall some event as in “I remember once when he came, Samantha and my daughter had had a fight about whether Barbie could swim. Both the girls were almost in tears. He told them that they would do an experiment and filled the sink and in she went.” Now you have a picture of a Dad that listens to his daughter even about something as silly as whether Barbie can swim and is able to find a solution to the problem.

Every point that is important enough for you to make should be important enough to be supported by an example. You could hire a stranger off the street for as much personalization as some witnesses give. Unless all you are seeking is data, take the time to humanize your client and your witnesses.

Child Custody witnesses usually fall into several categories.

A. Clients:
By far the greatest amount of testimony in a custody case will be from the parties. They are the two people who spent the most time with the child, that observed what the other did in private, that experienced the day to day events which made up the child’s life. Accordingly, both parents should be prepared for extensive examination by each attorney.
Your client is your best witness. Ask your client to write out the history of the 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 your client neglected to report. Sit down with your client and go over the strengths and weaknesses of your case. Who does he or she want to testify? What can they say? If your client says the opposing party has done something, get the facts: when? Where? Who was present? What was said? Will anyone else be able to testify about this besides the parties? Make sure your client has facts straight, years right,

B. Parents and Relatives
Even when your client thinks that the other party’s relatives will support your client, 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 a relative comes out and says I want to testify for your client, 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. If the other side isn’t calling Mom and testimony places her there at crucial times, you can use her lack of presence. “Your Mom lives in town? She knows you were going to be here today?” Often, parents and relatives will tell the truth if asked. If Sadie’s mom has just finished testifying that Sam took a whole plate of codfish and dumped it on Sadie’s lap and your client has given a slightly different or expanded version of the facts, you might ask “Mrs. Silk, you are Sadie Smooth’s mom? And you were present during the fight about codfish? Isn’t it true that you were there because Sam called and asked you to come? He was concerned that Sadie kept feeding everyone codfish every night? And Samantha was having nightmares about fish chasing her?”

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. 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. Consider placing your witnesses on standby so that they can get to court within half and hour and not have to miss work.

D. Teachers, Coaches, Day Care Providers
Your client should know the names of the children’s teachers, day care providers, coaches, and others having frequent contact with the children. When your client first came to you, the client’s homework should have included finding out who these people are, contacting them, and finding out what they have to say about the child. Not knowing the day care 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 day care 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. The client 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 in 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.

E. Others
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.

F. Experts
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. The use of psychologists and evaluators has been covered in section “A”, supra.

III. Evidence Considerations

A. Documentary Evidence

Like most people, judges like to see things as well as hear. Television is more popular than radio for entertainment. Most people would like to see the game as well as hear the play by play. For this reason, it is important to show the court your case. Hopefully, your witnesses have created verbal pictures for the court. But the court cannot see the child as your client does. Bring in things that can illustrate your testimony. Parents glow when they show pictures of their children. Let your client look a little human by showing the judge pictures of the kids. Things the children have made, pictures, report cards, Christmas gifts, favorite toys, the list is endless. The pictures show things that were done together, even if the other party was there, too. These items are things most parent will have or have access to. Evidence must be relevant (NCGS 8C-1 Rules 401. 402). However, in custody matters the court has wide latitude to consider evidence to support the best interest of the child standard.

If the issue is whether a parent has been allowed to communicate with a child, bring in copies of cards, letters, faxes sent, e-mails sent and/or received, both from parents and children. Have your client keep a calendar or diary showing entries regarding visitation or custody or concerns with the children.
In order for a tape recording to be legally obtained in North Carolina, at least one of the parties to the call must know that the tape is being made. It is not necessary to have “beep” or to inform the other party. The tape must be authenticated. There is not the same expectation of privacy for messages left on answering machines. Tape recordings can be used to show hang ups, bad language, frequency of calls, threats, or inappropriate behavior.

If one parent is a drinker save every liquor bottle or beer can for a month. The pile can be quite persuasive. Buy new clothes to return the child in and keep the ratty too small clothes for trial.

B. Witnesses

There are many things you as an attorney can do to present your case in court. However, beware. Your client’s child will have two parents forever. Some things can never be unsaid. Discuss your concerns with your client. If your client wants to hurt the other parent, rather than help the child, maybe the client needs a new attorney. Allegations are easy to make, hard to prove. But the taint of false allegations can color a case. Certain personality traits make a person appear helpless, the other party an ogre, the child a victim. Ask your client to flesh out allegations with facts and the names of persons who can support the facts. Check out your facts.
While it may be possible to have your child’s psychologist testify, or his best friend say that he told him something negative about the other parent in confidence, consider the probative value of such testimony and whether it outweighs the possible prejudice to the child.

C. The Child

Unless circumstances force an attorney to do so, it is never a good idea to put the child on the stand. First of all, children are ego-centric. Regardless of what a child is told, he or she often believes that the judge will make a decision based solely on what the child has to say. This can put a child in a Sophie’s Choice situation (for those of you who never read the book by William Styron, Sophie was in a concentration camp and was told she could save one of her two children and she had to pick which one. Sophie chose and then went mad. What do you think would happen to a child?) Hopefully a child loves both parents, and should. Sometimes a mature child will ask to go to court. Even then, it is best to discourage the child unless it is necessary for the judge to hear from the child. A judge can speak to a child in chambers only if both attorneys agree. A child can take the stand. Some counties make liberal use of guardians ad litem in child custody matters.

IV One Final Word

A recent study followed 131 children who were the subject of a landmark book published in the early 70′s about the effects of divorce on children. These children are now adults aging between their 20′s and 40′s. In this follow up book, The Unexpected Legacy of Divorce: A Twenty-five Year Landmark Study Judith Wallerstein followed up on those original children. The divorce had permanent repercussions. One complaint of those children, even 25 years later was that nobody listened to them, no one cared to ask them what was going on. While you are actively and zealously representing your client; take a minute to reflect. What your client really wants should be that the client’s child will become a healthy happy adult. Be certain that your representation promotes that goal.

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Child Custody Forms

Download the Child Custody Form

CASE NAME:

Witness #1

Witness name:
Need Subpoena? Y N
Relationship to Client:
Standby Phone #s:
Address:
Home phone:
Work phone:
Employer:

Do you know client ? Do you know op?
How long have you known client?
Do you have an opinion as to whether the Client would make a good parent to her/his child? And what is that opinion?
What makes you think the Client would make a good parent? Please give me some examples.
Do you know OP ? Do you think (s)he is a good father/mother ?
Have you seen OP interact with the child?
Have you seen Client do anything that you thought might be harmful to his/her child or may not be good for him/her?
What kind of person do you think Client is? What kind of person do you think OP is?
Is there anything else you think I should know that might benefit the Client in this custody trial?
General Impressions of Witness:

Custody Questions

Please state your name, age – education – residence – health – date married – date separated.
Names, ages, birth dates of the children.
Are you employed?
By whom – how long – job description?
What time do you leave to go to work in the morning and what time do you leave to come home in the evening?
How does your leaving for work in the morning coordinate with the children leaving to go to school in the morning?
How would you handle the children going to school in the morning in the event the Court grants you custody?
Do you have flexibility with your employment in the event the children become ill or for another reason you have to be home with them for a day or two?
Who prepares the meals for the children in the home?
How many meals a day do they have in the home?
What kinds of meals do the children have for breakfast?
Who prepares breakfast – lunch – dinner?
What kind of meals do you have for lunch and dinner?
Do you try to provide the children with balanced meals and are you aware of the nutritional value of foods?
What time do you generally have dinner?
Does your spouse come home for dinner and do you have dinner together?
Do the children like the foods that you prepare?
What are the children’s favorite foods?
Who does the shopping for food?
Do the children go with you when you shop?
Do you eat out with the children?
Describe the children’s manners, table and otherwise.
Describe the children’s cleanliness and how you could tend to their hygiene.
Do they have separate bedrooms? Describe their bedrooms.
Do the children have chores and responsibilities about the house? What are they?
Are the children responsible for their rooms and clothes?
Has your husband/wife ever complained to you about the children?
Does your spouse allow the children to have friends over to spend the night?
Who is the children’s doctor or pediatrician?
Where is the office located?
Who takes the children to the doctor?
Do you know the doctor?
Estimate how many times you’ve been to the doctor’s office with the children.
Has your spouse been to the doctor’s office?
Do the children have any special medical or dental health problems?
Do the children go for regular medical and dental checkups?
Who take them and how often?
Do the children have any prescriptions that they’re taking at this time?
Have they taken prescription drugs over the past several years?
Who gives the children the medicine when they need it?
During the past several years have any of the children been ill enough that they’ve had to stay home for several days?
Who would stay with the children during this period of time?
Did that create any problem with your employment or with your spouse’s employment?
Who purchases the clothing for the children?
Do the children have any particular likes or dislikes regarding their clothing?
Do you see that the children brush their teeth regularly?
Who does the laundry mending and sewing?
What school to the children attend?
What grade are they in?
Have you ever visited the school?
Have you engaged in activities at the school (PTA or volunteer)? How often do you do this?
Have you met with the teachers? How often?
Are the children having problems in school?
How are their grades in school and do they like school?
How do they get along with their classmates?
Do they like their teachers?
Do the children have homework?
Does a child ever ask you or your spouse to come help with homework?
Does you help the child with homework?
In reference to other intellectual activities, do you or your spouse read to the children in the home, take them to museums, theaters, plays, etc.?
Do the children have music lessons?
What is your position concerning television viewing by the children?
How do you deal with discipline with the children?
What is your involvement with the children’s religious activities?
Do the children have birthday parties and who arranges them?
Describe the last birthday party.
Do you have any particular kinds of talents that enable you to be a good parent?
Describe a typical weekday that you would have with your children from the time the first person in the household gets up until the end of the day when the last person goes to sleep.
Describe a typical weekend, a Saturday or Sunday, from the time the first person wakes up until the last person goes to sleep.
Describe the children’s relationship with their father/mother.
Why do you believe that the children would be better off in your custody than in the custody of your spouse?
If you were awarded custody of the children, would you encourage a strong relationship between them and their father/mother?

Parental Responsibilities

Doctor, dentist visit
Yearly physicals
Arrange Visitation
Purchase clothing
Allowances
Discipline
Help with homework
Transport to scouts
Work on scout badges
Help with Girl Scout troop
Help with Boy Scout troop
Have friends over for the night
Teach responsibility with household jobs
Chauffeur
Plan and carry out birthday parties
Monitor grades
Calls to teachers and principals
Attendance at plays and concerts
Teacher/parent conferences
Hair cuts
Cooking and teaching cooking
Monitor Friends
Wash, sort, iron clothes
Read to children
Maintain relationships with relatives
Encourage music, dance lessons, etc.
Monitor TV reviewing
Referee fights between siblings
Religious training, church activities
Cleaning