GPSolo Magazine - September 2004

Domestic Relations Law

Marshaling the Evidence

In custody cases, as in all areas of the law, you must believe in your client’s case before you can persuade the court. If you do not, you should re-evaluate your willingness to undertake the representation of the client. The client—and you—should have a genuine and reasonably substantiated belief that the children would be much better off with him or her than with the other parent.

Tactical concerns. Negative aspects about your client are best acknowledged at the outset of the case, openly and honestly; do not conceal them until the other parent brings them to light. Your client must be aboard on this effort and perhaps acknowledge and attempt to correct any personal or parenting weaknesses as unobtrusively as possible before the first shots of the explosive battle are fired. Any resistance to early corrective action or subsequent concealment of negative traits will be uncovered and exploited by the other side.

Your client’s “trashing” of the other parent serves no purpose except to anger the trier of fact and give credence to the claim that your client wants to alienate the children from the other parent—and that perhaps the children would be better off with the parent who is not filled with such bitterness. Perhaps the hardest job of a custody lawyer is to rein in the client so that negative aspects of the other parent are indeed raised, but somberly and regretfully, rather than shrilly and harshly.

Developing themes. The themes of the case play their most important role as you develop your theory of the case. Itemize the positive and negative parenting/personal characteristics of each client. It is often useful to graph the pros and cons of each parent. The line representing the “bad” features should be high for your opponent and low for your client; the line representing the “good” features should be the opposite. Themes can be refined and adjusted, depending on your effective reading of the trier of fact. Listen to the court. The judge will give you clues about what he or she finds interesting.

But use caution to “refine” the theme, rather than changing it altogether. Switching theories of parenthood in the middle of the case will impede everyone’s credibility, including yours.

The process. The custody battle will almost invariably require the children to open their souls to a host of strangers who will be important in deciding the futures of all the parties in the case. These will or may include: the judge; a lawyer for the child; forensic mental health evaluators; the local branch of child protective services, if there are allegations of abuse or neglect; and the custody branch of the local probation department, which may be requested to conduct “home studies.” Also of importance will be the records and testimony of treating health-care professionals, teachers, child-care workers, and the parties themselves.

Any of these individuals may have intellectual strengths or weaknesses, prejudices, inclinations, attitudes, and experiences that provoke strong feelings about one or more issues in the case. Because some of these people will be involved by random selection, many unknowable risks are inherent in the case. These risks must be overcome by the sheer weight of evidence in support of your position, if at all possible.

Trial witnesses. Significant documents and testimony may be subpoenaed for trial. Because records of drug and alcohol treatment are protected from disclosure by federal law, this type of information may need to be elicited from other sources (such as the parties or witnesses), which may not be subject to such protections, and then only in an appropriately ethical and credible fashion.

A variety of witnesses might be of assistance in your client’s custody trial. Ask your client to provide a detailed witness list, describing who the person is, what contact he or she has had with the child and the client, what he or she might contribute to the case, the person’s background, the substance of his or her testimony, any documents that might corroborate or enhance that testimony, and any detrimental issues that might be brought up at trial by the other side. Ask your client the same series of questions regarding witnesses likely to be called by the other parent.

Trial judges often ask for an offer of proof after they have heard from several similar witnesses. Counsel should be prepared to indicate the sum and substance of testimony and how that testimony fits into the general scheme. Counsel must be concerned that proposed testimony not be cumulative. Each witness should add different nuances and information to each issue in the theme.

Teachers and school psychologists often are among the best and most knowledgeable neutral witnesses regarding school-age children. However, many are reluctant to testify, and many school principals, superintendents, and the school district’s attorneys may prohibit you from speaking to them before trial. It probably is best to ask first the principal, the superintendent, or the school district’s attorneys to schedule a conference with the teacher or staff member. If you are able to speak directly with teachers or other staff before trial, ask how much knowledge they have about the child’s well-being, what if any issues they have observed, events that have upset or empowered the child as a result of a parent’s actions, and your client’s and the other parent’s participation in the child’s educational life. The teachers’ or staff members’ own educational and employment experience should also be a subject of inquiry. If the child is in a more advanced grade, current or knowledgeable recent teachers and staff members probably provide the most informative testimony.

Another class of witnesses is those who work routinely with the child. For example, with very young children who may not yet be of school age or who are attending school for only part of the day, a caregiver can be an important source of information. Another group of potentially valuable witnesses are those who work with the child in various organized activities. These include coaches, dance instructors, scout leaders, and those who run clubs in which the child participates.

Other witnesses can testify about the child’s special needs. Such a witness also can address your client’s involvement with the professional. If your client has utilized psychological or psychiatric services, ask the therapist to testify as to the psychological makeup of your client. A caring psychologist or psychiatrist should testify that a person who seeks treatment and continues in treatment is a person who wishes to make life better and thereby set a good example for children. If the psychiatrist is prescribing medication, he or she should be prepared to describe the type of medication and its implications.

Remember that your communications with these witnesses are absolutely not privileged and may be the subject of cross-examination and testimony. Err on the side of extreme caution when interviewing these witnesses and do not reveal your client’s confidences, your theories of the case, problems with the other parent, strategic decisions that you are considering, or other commentary that may be the subject of examination and testimony and thus adversely impact your client.

Barbara Ellen Handschu practices in New York City and Buffalo, New York; she can be reached at . Terri L. Weiss practices in White Plains, New York, with Marino & Weiss; she can be reached at

for more Information About the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 15 of Family Advocate, Spring 2004 (26:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website:

- Periodicals: Family Advocate, 64-page quarterly magazine; Family Law Quarterly, quarterly journal.

- Books and Other Recent Publications: Collaborative Law; The Complete QDRO Handbook; The Divorce Trial Manual; 101+ Practical Solutions for the Family Lawyer; Balancing Competing Interests in Family Law; Surviving Your Divorce: A Client Manual.




Back to Top