How to Build a Child Custody Case
By Stephanie Reid
When building a child custody case, the goal is to present to the judge facts and evidence to support the assertion that the child's best interests are better upheld by awarding custody to you as opposed to your child's other parent. When determining the child's best interest, the court weighs a number of factors, which are found in your state's child custody statutes. In preparing for the case, you and your lawyer will engage in the civil discovery process, which may include the appointment of an independent third-party guardian ad litem. In the family court setting, which is heavily fact-driven, the judge will require you and the other parent to present as much information as possible about the child's life and surroundings in order to make a fully-informed decision.
Best Interest Standard
The best interest standard has been upheld by the U.S. Supreme Court as the mandatory consideration when making determinations over child custody, visitation, termination of parental rights, guardianship and adoption. Each state's best interests statute may vary slightly, however the main factors include the emotional ties and interrelationships between the child and family members, ability of the parents to offer a safe home, mental and physical health of all parties involved, criminal history of all parties, domestic violence history and the wishes of the child (if age appropriate). You should prepare evidence to address each one of these factors as well as evidence to show the other parent does not uphold the standard as well as you and is not the best choice for custody of your child.
Building Through Discovery
The civil discovery process occurs prior to a trial and allows you to collect information for later use against your opponent in front of the judge. This process is your opportunity to uncover evidence to show the other parent is not able to meet the best interest standards and cannot provide the child with the required nurture, guidance and maintenance. For instance, requesting employment records is important to show whether the other parent has a job and steady income, as well as whether he has been terminated from a position and for what reason. You may also request a criminal background check to reveal a history of violence, sex offenses or other criminal activity. If you believe the other parent is involved with drugs, you could request drug testing or other records that may reveal a history of substance abuse. Another common discovery request is for records from the state child welfare agency in the event of a prior investigation for child abuse or neglect.
Guardian Ad Litem
A strong option to consider as you prepare your child custody case is to ask the court to appoint a guardian ad litem. A guardian ad litem is a third-party attorney or advocate who investigates whether a child's best interests are met by both parents and caretakers. The guardian will often show up unannounced to observe the child during visitation or custodial time and build a strong rapport with the child during the process. The purpose of the guardian ad litem is both to investigate the child's situation and to make recommendations to the court based on her findings. In addition to interviewing the parents and child, the guardian ad litem will interview teachers, classmates, the child's pediatrician, counselors or other family members. Prior to the custody trial, the guardian ad litem will compile her findings and submit a report for the judge's review outlying her position with regard to the custodial arrangement and where the child should live. If you have concerns about the other parent's interaction with the child, the guardian ad litem will make any concerns known to the judge in her report, which may further help build the case in your favor.
As your trial date approaches, you must choose the witnesses to testify at the hearing. Strong witnesses in a custody proceeding are those who have close ties to the child or are otherwise in a position to observe the child on a daily basis. Witnesses could include teachers, daycare providers or family members. Witnesses may also be asked to testify as to your relationship with the child or regarding allegations about the other parent. As you consider the testimony you would like to present, remember the rules of evidence prohibit the introduction of hearsay; if you would like the judge to know what a particular person said or observed, that person must appear in court and testify on the record.
The custody trial is your chance to present your evidence and testimony in front of a judge for ultimate consideration. The court will also consider evidence presented by the opposing party and guardian ad litem. Each parent will have equal opportunity to introduce exhibits, such as medical or criminal records, as well as examine and cross-examine witnesses. Once all parties have concluded their presentation, the judge will make a determination in the weeks following the trial and a final order will be issued. If you are not satisfied with the outcome of your custody case, family court orders may be appealed to an appellate court in your jurisdiction.
Stephanie Reid has been writing professionally since 2007, with work published in the Virginia Bar Association's "Family Law Quarterly" and the "Whittier Journal of Child and Family Advocacy." She received her Juris Doctor from Regent University and her Bachelor of Arts in French and child development from Florida State University. Reid is admitted to practice law in Delaware and Maryland.