Picking good witnesses for custody cases

Posted Friday, July 29th, 2022 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

Some custody cases can be tried with the parents being the primary witnesses.  But when there are substantial disputes about who the children are more closely bonded to, which parent is best able to attend to the children, and which parent has been more actively involved in the children’s lives, third-party witnesses are frequently decisive.  In such cases, one cannot determine what goals to set or how aggressively to pursue those goals until one understands who these potential witnesses are and what testimony they might contribute.  

The time to begin thinking about these witnesses is not when the case is set for trial.  If one only begins thinking about custody witnesses after discovery has been answered, a guardian has investigated, and mediation has occurred, the client has incurred substantial expenses and set goals without a clear understanding of how strong his or her position is.

Ideally, one should begin thinking about custody witnesses before the case is filed (if one represents the Plaintiff) or before an answer is filed (if one represents the Defendant). That is rarely possible.  However a pretty thorough witnesses list should be developed before discovery is answered or the guardian begins investigating.  That list can be modified as the case develops.

There are three components to an ideal custody witness: 1) not inherently biased (such as the client’s family and close friends); 2) knows the client, the other parent, and the parties’ children well; 3) will speak well of the client’s relationship with the children without trashing the other parent.  There are exceptions within each of these criteria.

On the first (bias) issue, the court tends to discount the testimony of each party’s family and close friends. Simply based on the nature of the relationship, such witnesses are inherently biased in one party’s favor.  Ideal custody witnesses are witnesses who typically are neutral: teachers, coaches, medical providers; parents of the children’s friends.  However, family members and close friends who’ve actually lived with the parties and the children recently–and thus can provide eyewitness testimony as to what happens in the privacy of the home–are inherently useful witnesses so long as they can keep their biases under control.  A family member who can acknowledge nothing good about the other parent or nothing bad about his or her relation is a useless witness.

Also, family members or (ex-) close friends willing to testify for the other side can also provide valuable testimony if they testify against their own relation or ex-friend.  However, before calling such witnesses, one should determine why the rupture in the relationship took place.  As often as not it is the relative or friend who is problematic, not the parent.  Calling a toxic grandmother to testify against her daughter does not help one’s case.

On the second (knowledge) issue, calling witnesses who don’t know the parties or the children well is pointless.  If a witness only knows one parent, that witness’ testimony might demonstrate a parent’s strengths but cannot contrast the two parents. Such testimony generally has some, but limited, value.  The exception is when that witness would normally know both parents but only knows one parent because the other parent is uninvolved in an activity custodial parents are typically involved in.  The children’s soccer coach who knows both parents but finds one parent more supportive and involved provides useful testimony. That same soccer coach who only knows one parent is telling the court the other parent isn’t involved in the children’s soccer. That’s relevant.

On the third (temperate) issue, a witness completely enamored of one parent and disdainful of the other parent is rarely credible.  Witnesses who can provide balanced testimony about both parents, and acknowledge strengths and weaknesses in both parents, provide the best testimony.  There’s an obvious exception for completely horrible parents: witnesses don’t have to find nice things to say about parents who are clearly and frequently abusive or inappropriate. But, ideally, a custody witness makes one’s client look better rather than making the other parent look bad.  Positivity is credible.

Custody litigation is not merely a matter of calling numerous witnesses to say nice things about one’s client and nasty things about the other parent.  Five favorable witnesses who are unbiased, knowledgeable, and temperate are powerful enough to win most custody cases. Locate these witnesses at the beginning of the case.

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