Before you can decide what evidence to gather for trial, you need to understand what you must prove in court. The court will generally consider the best interests of the child in making custody decisions. In determining the best interests of the child, the court may consider factors such as which parent has been the primary caregiver, whether there has been a history of abuse, and financial ability to care for the children. Usually, the particular factors the courts in your jurisdiction will consider are listed in state statutes.

To find the applicable statute and learn what you must prove, consult with local organizations. Many communities have domestic violence organizations, victim services offices, and law school clinics that can probably help you. These organizations often have material explaining the legal process and the relevant statutes. These groups may also help you prepare legal documents, gather evidence, and even accompany you to court.

Gathering Evidence

Once you have learned what you must prove in court, you need to prepare evidence to convince the judge to award you custody of your children. There are different types of evidence, including testimonial, documentary, and physical evidence. All of these different types of evidence can be used to prove your case.

Testimonial Evidence

The most important evidence the court will consider will be the testimony of witnesses. You will probably be the most important witness in your case, so it is important that you present the most effective testimony. When you go into court, you must prove to the judge that you should get or retain custody of your children. Many people have difficulty testifying in court because they want to tell the judge their story in the same way they would tell a friend a story.

The judge, unlike your friend, will be less interested in hearing about your feelings than hearing facts about why you are the better parent. Therefore, you should describe events or state facts that show why you should have custody of the children. For example, stating that the children would be better off with you because you love them will not be the most effective testimony. The more effective testimony will not only tell the judge that you love your children, but will also describe how you have been the parent responsible for feeding the children, taking them to school, and taking them for medical checkups.

When describing events for the court, it is important to provide the date, time, and place that events occurred. If you cannot remember the exact dates when events occurred, you can give approximate dates. You should also give the details of events. An excellent way of preparing your testimony is to write an outline of what you need to tell the judge. This outline can also guide you in gathering physical and documentary evidence to corroborate your testimony and the testimony of other witnesses.

Most jurisdictions now require the judge to consider evidence of abuse between the parents in making custody decisions. The court’s primary concern will be the impact of any abuse on the children. Therefore, your testimony should describe any abuse in detail and include a description of how it has affected the children. You can explain how the children were affected by describing incidents of abuse when the children were present and any behavior or statements the children have made showing their awareness of the violence.

Besides hearing the testimony of the parents, the court will also consider the testimony of other witnesses. If there are witnesses to the abuse, you should ask that they accompany you to court to describe what they saw to the judge. Also consider witnesses who can testify about your parenting skills and your relationship with the children. Your witnesses may be able to testify about events to show that the other parent should not have custody. Although your children may have witnessed violence against you, many courts will not hear testimony directly from children. Depending on the age of the children and the practice of the court in your state, the judge may appoint a lawyer or social worker to tell the court what the children observed and their views on custody.

Although each case will require different testimony based on the particular, consider the following topics when drafting your testimony.

Testimony Topics

Relationship Between the Parents

What is the current status of the parties? Are you married, divorced, living together?
Is the father named on the birth certificate, or must paternity be proven?
Which parent has had primary responsibility for the children? Who prepares them for school, prepares their means, arranges childcare, takes them to the doctor for checkups, and helps with homework?
If you have not been the primary caregiver how have you been involved with children?

Evidence of Abuse

How long has the violence been going on?
How have you been injured? Describe incidents of violence in detail with dates, times, and places if possible.
Has the violence increased in the last few years or months?
Does the abuser have access to a weapon?
Have the children been abused? If so, describe the incidents in detail, giving dates, times, and places.
Have the children witnessed the abuse against you?
How have you protected the children from abuse?
Have the children made any statements about the abuse, had nightmares, or difficultly in school?

Custody Arrangement Requested

There are various custody arrangements the court can order, such as joint custody, physical custody with visitation to the non-custodial parent, and supervised visitation.

What type of custody arrangement are you requesting, and why would this arrangement be in the best interest of the children?
If you are seeking supervised visitation, how and where will the visitations take place?

Response to Respondent’s Allegations

The other party may attempt to contradict your evidence or to show that you are not capable of properly taking care of your children. Usually, the other party must provide a written notice of his/her allegations against you. You must not only deny these allegations or explain the circumstances in your testimony, but you should also gather other evidence to support your testimony. You many need to respond to the following allegations:

That you have acted abusively toward him and/or the children.
That you have been using drugs. He may describe the way you look and act.
That you have been neglecting your children. He may have phoned Child Protective Services.
That you have been unstable or have a mental condition that prevents your from being a good parent.
That you have been acting immorally in front of your children (e.g. engaging in sexual activity in front of them.)
That you have been unable to get or hold a job (on welfare.)
That you are living in a bad neighborhood and leaving the children in a stranger’s care all or most of the time.

Other Respondent Arguments

The children’s father may make additional arguments to prove that he should have custody. These arguments may include the following:

He may have a new wife or girlfriend who doesn’t work and is able to take care of the children at home.
He may have a steady income with which he can give the children more than they need.
He may own his own home and live in a safe, quiet neighborhood.

Physical and Documentary Evidence

Once you have outlined the possible trial testimony, you need to gather physical and documentary evidence to corroborate the testimony. You should start gathering evidence as soon as possible because there will frequently be a lengthy delay in getting a response to your request for documents. You should bring at least two copies of the documents to court so that you can leave one copy with the court. The type of evidence needed in each case will depend on the specific factual allegations. In considering the evidence, you must prove your case. Consider the following examples of physical and documentary evidence:

Relationship Between the Parents

Courts can only hear cases when there is a certain relationship between the parties. This means that you must be ready to prove the relationship. Evidence of the relationship, includes a marriage license, birth certificates, baptismal papers, and divorce or separation papers. If you do not have copies of these documents, you can get copies for a small fee at local government offices, usually the county clerk’s offices where the event occurred.

Evidence of Abuse

In addition to your testimony about your abuse, you should bring to court as much physical evidence as possible to prove that you were abused by the other party. Such evidence might include:

Certified copies of medical and dental records.

Since medical records are usually confidential, you will probably have to sign a release for your medical records. If your doctor or hospital does not have a release form, you can write a letter requesting a certified copy of your medical records. Include the dates of treatment, your date of birth, and the name of the treating physician in the letter requesting the record.

Photos.

Bring to court any pictures of injuries caused by the other party. You do not have to remember who took the picture, but be able to state when the picture was taken.

Copies of police reports and 911 calls.

States differ on how you can get copies of these materials. Contact the precinct where you filed the police reports to learn how to get copies. Local victims services organizations may also be able to help you.

4. Threatening letters or cards written by the batterer.

5. Answering machine tapes of threats or other statements by the abuser.

Make sure to bring a tape recorder to court to play the tape.

Diary or letters you have written describing the abuse.

Keep in mind, however, that if diaries or letters are considered by the court, they will not be kept confidential.

Copies of restraining orders, petitions, etc. issued by court.

If you do not have copies of these documents, get certified copies from the clerk’s office where the order’s were issued.

Other Legal Proceedings

In some jurisdictions, abuse cases are handled in several different courts. You should know the status of all proceedings and have copies of any settlements or judgments. The status of criminal cases is also important information to present. If there are criminal cases against the other party, bring the name and phone number of the prosecutor handling the case. You should get the status of the criminal case before going to court on the custody case.

Evidence About the Children

The court will be interested in the physical and emotional condition of the children. Even if the judge appoints a lawyer or social worker to give an opinion on the best interest of the child, you will want your own evidence to show that the existing custody arrangement should be made permanent or that the custody arrangement should be change. The following are some suggestions for custody evidence:

Copies of the child’s school or daycare records.
If the children are in counseling, a copy of the counseling records.

3. Medical records of the children.

4. Letters of support.

If you cannot get a witness to come to court and testify about your parenting skills, bring a notarized letter from a doctor, teacher, school principle, or scout leader describing observations of you with your child.

Pictures of your home.

If there is an issue about your ability to provide an adequate home for the children, you may want to bring pictures to court of where the children will live.

Evidence of proposed visitation arrangement.

If you are requesting supervised visitation, you need to have a plan for who will supervise the other parent’s visit with the children. You should have a letter from the individual or group that agrees to supervise visitation.

E. Information About the Other Parent

It is useful to have a recent photo of the other parent in case you need it to give it to the police or process servers so that they can locate and serve papers on the other parent. In addition, if you know that the other parent has a criminal record, request his record from the police department. You will need to provide them with his name and date of birth.

Response to the Other Parent’s Allegations

If your mental health has been raised as an issue by the other party, you must carefully consider how to present evidence of your mental condition. If you have been in counseling, consider having your counselor testify to explain your condition. Find out what they would say in advance, however, so you can make an informed decision about whether or not they should testify.

You will need to present information about your financial resources and show how you will support the children. Consider including pay stubs and letter from employers. If you are looking for a job, be prepared to describe what you have done to find employment. If you have other sources of funds, such as savings or friends, bring bank statements or letters to verify them.

Allegations of drug and alcohol abuse are a serious charge. If you do not have a problem with drugs or alcohol, you must tell the court this and provide explanations for any unusual behavior. If you have had a problem with drug or alcohol abuse in the past, provide evidence that this is no longer a problem. Such information might include the treatment you have received and how long you have been drug or alcohol free. More information about drug an alcohol abuse is also included in this booklet.

Conclusion

Evidence can be a powerful tool in proving to the court that you should have custody of your children. The key is to think creatively about proving what happened to you and your children.

From “How to Gather Evidence to Present At Trial” by Ruth Jones, J.D. as published in “Managing Your Divorce: A Guide for Battered Women” from the National Juvenile and Family Court Judges Resource Center on Domestic Violence