Continuing with the theme of my repeated violations of the Fourth Commandment of Irving Younger’s Ten Commandments of Cross Examination—“Don’t ask a question to which you do not know the answer”—is a question one should almost always ask on cross examination in a custody or visitation case. That question is, “do you have anything good to say about my client’s parenting?”[i]
That answer almost always elicits one of three responses—any of which are helpful. The first response is along the lines of “I really don’t know your client.” That’s actually a helpful response, The answer establishes limitations on that witness’ knowledge. All the good things that witness said about the other parent can’t be balanced against what they know about your client. That witness can establish the other parent is good but cannot establish that the other parent is better.
The second typical response is when the witness answers “no.” This is my favorite answer. I have yet to try a custody case where there wasn’t some testimony about each parent’s strengths. That this witness can’t acknowledge any demonstrates a very biased witness. This makes the trial judge likely to heavily discount that witness’ testimony,
I believe I actually won a custody trial when maternal grandmother, who had her daughter living with her and who would live with the child if her daughter got custody, was given four chances to answer this question. She was evasive the first three times and answered “no” the fourth time. Father had gained custody mid-litigation due to Mother’s interference in my client’s relationship with the child. The family court judge had already heard from numerous care-provider witnesses (teacher, medical providers, counselor) discussing my client’s growth and strengths as a parent. After this answer there was zero chance the family court judge was returning that child to that grandmother’s home.
The third typical response (and the response I prepare my custody witnesses to give) is some acknowledgement of the other parent’s strengths. This answer bolsters the witness’ credibility by making that witness appear knowledgeable and less biased. But that answer also says something good about my client’s parenting. I will take that small victory.
I am shocked this question remains rarely asked in custody cases. Younger’s Fourth Commandment has no validity when the answer to an open ended question cannot hurt your client. “Can you say something good about my client’s parenting?” is such a question.
[i] There are only two circumstances I can think of when this question wouldn’t elicit a helpful answer and I have yet to try a custody/visitation case where these were the circumstances. One circumstance is when your client is a pedophile/physical abuse-level horrible parent. If your client is one of those, why are you trying a custody/visitation case? The other circumstance is where your client is literally a stranger to the child. This should never be the circumstance at trial: your client should have obtained some visitation during the litigation period. However, asking that question when the child doesn’t know your client is going to elicit harmful testimony.
