The child custody interrogatory that often reveals more than it should

Posted Wednesday, August 10th, 2011 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

It’s typically hard to get useful information from child custody interrogatories.  One question that often reveals more than it should is “Is there anything about the opposing party that renders him [her] unfit to have sole physical custody of the children? If so, describe with specificity this unfitness.”

The gap between being a fit parent and obtaining sole physical custody of a child is huge.  Being merely “fit” is a pretty low standard.  It basically means if the other parent was absent could this parent adequately care for the child or would the child be better off in foster care.  Most parents are fit; less than half obtain sole physical custody (less than half because there are some cases in which neither parent is awarded custody).  In a custody case between two parents it is the better parent who generally obtains custody.  Only in a case in which one parent is unfit, is the other parent’s fitness a determinative factor.

Since most parents are fit, most of the time the answer to this interrogatory should be a simple “no.”  It rarely is.  Sometimes, the opposing party will answer this question with allegations that rise to the level of parental unfitness: substance abuse, child abuse or neglect, serious mental illness.  Such an answer is responsive but useful.  If the allegations of parental unfitness have evidence to substantiate them, it is a signal to one and one’s client that he or she will have a burden of disproving this allegation at trial to be considered a candidate for custody.  Further, if the allegation has sufficient evidence to make it likely to be proven at trial, an astute attorney will counsel one’s client to remedy these fitness concerns and limit his or her goals (perhaps seeking visitation rather than custody).  However, if the allegations lack substantial evidence to support them, the response can be used to show the other party is unreasonably resistant to one’s client’s relationship with the children.

However, much of the time, the answer to this interrogatory is not really responsive.  Rather than listing fitness concerns the answering party will list numerous reasons he or she should obtain sole physical custody of the child.  Typically these reasons will mix solid custody issues (the answering party has been the primary caretaker) with the picayune (the other party sometimes yells at the children or feeds them junk food on occasion).  The result is an answer that makes the answerer look petty and unable to acknowledge the other parent’s good points.  In a close custody case, displays of such antipathy towards the other parent’s role as a parent is sometimes enough to tip custody to the parent who displays a more encouraging attitude.

I have never understood why attorneys allow their clients to engage in such logorrhea when answering this interrogatory but they frequently do.  Such responses are a gift from the litigation deity.

2 thoughts on The child custody interrogatory that often reveals more than it should

  1. This is a solid article on the custody interrogatory regardless of which state you practice in. I’ll be sure to use this particular question during my first set of interrogatories. Thanks for the article!

  2. Misty Porter says:

    I have a custody case with my now ex-boyfriend’s mother she took temporary custody of him by making accusations her son and I were on drugs. I’m wanting to send out interrogatories as well as imposing property, and a deposition. Her husband is a child pedophile that went to prison for gross sexual imposition against her two sisters, and I would like to ask why she still with the man that messed with her nieces and went to prison. But I have searched everywhere on the internet and it doesn’t really give me much information on what all I can ask. She also overdosed in 2016 by taking too much of her medication but the magistrate has denied any Mental Health assessments, even though she is on medication. There is a ton of things to this case that is very wrong the judge had made a final decision in October of 2019 and never sent it out but since then I have had to file contempt against her for keeping my son away from me along with her allowing her husband to be alone with my son when there’s a court order stating he is to never be alone with him but I have her under oath stating she does allow him to be alone with my son I also have it recorded the husband admitted that he is alone with my son. The grandmother does have an attorney to where I do not I did not have the money afford an attorney so I have been representing myself. But I have done a lot of research I have filed all the proper paperwork I have needed up until this far because it’s been going on for two years and while I tried to send interrogatories in the beginning I was told that I could not because I would have had to have sent them long before when I was trying to. We go to court May 28th and the magistrate has stated this is the final hearing of all matters. So I’m kind of wondering how this is happening now and again as to what questions I can ask or if I can ask anything I want.

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