Evidence for a Custody Trial
Understanding the Law
Physical and Documentary Evidence
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.
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.
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
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
- 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?
- 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
- 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
- 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
- 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
- Other Respondent Arguments
The children’s father may make additional arguments
to prove that he should have custody. These arguments may include
- 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.
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.
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
- 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.
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
If you do not have copies of these documents, get certified
copies from the clerk’s office where the order’s
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
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.
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.
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