The custody witness few ever think to call

There are lots of obvious witnesses in a custody case: the child’s teachers; the child’s coaches; the child’s mental health professionals; the parents of the child’s friends; the parent’s adult child(ren).  But the best witness can often be someone that few ever think to call: the parent’s ex-spouse.

The nature of family court is that judges rarely see ex-spouses who get along.  Family courts judges spend most of their time and energy resolving disputes.  Ex-spouses who co-parent children without conflict tend to appear in family court just once–and that’s to approve an agreement in which there’s no apparent animosity.  It’s the co-parenting ex-spouses who are perpetually fighting that the family court tends to see frequently and it’s these couples who tend to be memorable (conflict being more dramatic than cooperation).  Observing a skewed slice of humanity, family court judges become inured to seeing most ex-spouses as constitutionally incapable of getting along.

Thus, when a parent’s ex-spouse, especially an ex-spouse with whom that parent has co-raised a child, is willing to come to court and say what a wonderful and cooperative co-parent he or she has, it makes for very powerful testimony.  Ex-boyfriends or ex-girlfriends, especially those who have a child with the parent, can provide similar testimony, and such testimony is helpful.  But it is not as strong as similar testimony from an ex-spouse, because only an ex-spouse demonstrably loved the parent, at some point, enough to marry him or her.

The mere presence of the ex-spouse on behalf of one’s custody client communicates: 1) I loved this parent enough to marry him or her; 2) our love went bad to such an extent that we ended our marriage; 3) I still think enough of his or her parenting to come to court and support the custody claim.  Especially in the context of a family court that typically observes nothing but hatred and contempt between ex-spouses, that’s incredibly powerful.

In preparing custody cases one should always determine whether one’s client has an ex-spouse (or ex-boyfriend/girlfriend) who has raised children with one’s client, and consider whether that person might be willing to testify on the client’s behalf.