First, it must be understood that a trial should be your last alternative. Custody trials are incredibly painful and difficult for parents and children. A trial requires you to rip each other apart and say the worst things possible about each other. After a custody trial, it is extremely difficult to move past the ugliness and parent together cooperatively. The trial is also terrible for your child. He loves you both, and knowing you are hurting each other because of him is very damaging. As much as you try to shield your child from the trial, he is going to know about it and he is going to see the effect it is having on you. Your child likely will feel he is placed in a situation where he is supposed to somehow choose between you and knows that it is a situation in which he cannot win. Never ever try to bribe your child or convince him about what he should say to the law guardian or the judge. It’s quite common for kids put in that position to walk into the judge’s chambers and proudly report how Daddy is buying them a puppy if the judge lets the child live with him.
If you have been unable to reach an agreement and have no choice but to have a custody trial, there are some things you can do to prepare for it and help your attorney (if you have one) present a good case.
You must learn to document everything. Keep a journal and write down each incident that occurs with the other parent in terms of your child, such as missed visitations or times when the child is returned to you dirty. Write down everything you do with your child. This will help you present evidence of what happens on a daily basis. You should also use a calendar to record when your child is in each household so that you can quickly reference this information and be able to show a clear pattern of how your child splits his or her time between parents.
Ask your attorney if it is legal to tape-record your spouse without her permission in your state. If so, you can make audio recordings of your conversations with her that back up your position. This could be useful if your spouse says things to you such as, “I don’t care what our daughter thinks — she’s a dirty little tramp.” Getting something like that on tape would be very useful in court.
You should also accumulate and take photographs. Photographs can be used to show the condition of your spouse’s home or vehicle or the condition the child is in when brought to you by the other parent. Photos can also showcase the terrific times you have had with your child and the child’s room or facilities at your home for the child. Videotapes can be used in the same way as photographs to provide visual evidence.
Spend as much time as possible with your attorney going over all your evidence and everything you can testify about. Provide a list of witnesses your attorney can call who will support your case. During the trial, let your attorney handle things, but if someone has said something that isn’t true or if you’ve just thought of something very important, your attorney needs to ask a witness, write a note or ask the attorney if you can have a brief recess.
Brette McWhorter Sember, JD
Excerpted from The Complete Divorce Handbook (Sterling) by Brette McWhorter Sember, JD.