The custody witness few ever think to call

Posted Saturday, December 3rd, 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

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.

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