Arlaine Rockey - National Child Abuse Custody Lawyer & Trial Consultant
National Attorney & Trial Consultant for Protective Parents

Gathering Evidence

Arlaine Rockey

Experienced Trial & Appellate Attorney

Win Child Custody

Help Your Lawyer Help You

© 2014-2019 By Attorney Arlaine Rockey 

Part 2: Gathering Evidence for Your Custody Case

There are two main kinds of evidence:  witnesses and physical evidence.  Sometimes there is a temporary custody hearing before there is a permanent custody trial.  Most courts require the parties to attend custody mediation because most custody cases can be settled.  If there is a mediation scheduled, many courts will stay (stop) all formal discovery by the lawyers.  Discovery is the process of finding out the facts about the opposing party and as the opposing party sees them.  Discovery is done by your lawyer.   Formal discovery is generally either depositions (out-of-court testimony under oath recorded by a court reporter), requests for the opposing party to produce documents and other things, requests for the opposing party to answer written questions, and requests for the opposing party to admit certain specific facts. Informal discovery is the process of asking the opposing party to voluntarily hand over documents and other information.

In addition to obtaining discovery from the opposing party, your lawyer needs to prepare your side of the case.  You can help your lawyer in this endeavor, by gathering information about possible witnesses and physical evidence to support your case. [2]  Physical evidence is anything you can touch (including on a computer or a cell phone). Your lawyer will determine which witnesses and what physical evidence will actually be presented to the court, but you can help your lawyer by gathering information, including a list of potential witnesses and copies of documents from which to choose, and also letting your lawyer know which witnesses the opposing party has and what types of physical evidence you think the opposing party has or should have.  Further, having all this information early in your case will help your lawyer decide what types of discovery to request from the opposing party.  You should review the information in your detailed history outlined in Part 1, “How to Prepare for Your Custody Consultation.”  It will give you ideas on what further information and documents you can gather for your lawyer and who to put on your potential witness list. 

WITNESSES

You should review the information in your detailed history outlined in Part 1, “How to Prepare for Your Custody Consultation.”  It will give you ideas on which documents and further physical evidence you can gather for your lawyer and who to put on your potential witness list.

A potential witness is someone who has some information about your case.  In custody cases, for the judge to grant custody to one or both parties, the judge will decide what arrangement is in the children’s best interests.  Best interests are determined by a multitude of factors, that includes just about everything about or effecting your children.  So, there will often be many potential witnesses.  You should make a potential witness list for your lawyer with the name, contact information, job, and substance of what each witnesses could and likely will testify.

While family members should be on your witness list, judges generally place more importance on the testimony of witnesses who are not related to you and who have had much interaction with your children.  Judges particularly like children’s teachers, therapists and doctors if there is a medical issue.  You should list all professionals who have information about your children, yourself, or your co-parent.

PHYSICAL EVIDENCE

You should gather and make a list of all the physical evidence that may have anything to do with your children, yourself, or your co-parent, for your lawyer.  First, review your history and list out the physical evidence that might help your case or that might be used against you.  You should make copies of the physical evidence that you have not already provided to your lawyer.  Further, as custody cases may take a long time to resolve, you should make an additional list and gather additional physical evidence that is generated while your case is pending.  Here are some types of physical evidence that might be applicable to factors in your case:

School

  • All of your children’s school report cards for each year

  • All of your children’s attendance records if not on the report cards

  • Any important communication (ex/ letters, emails)  to and from the school or teachers regarding your children

  • Reading records for any elementary-age children

  • For children with special needs, their most recent Individualized Education Plan (“IEP”) or 504 Plan that will show their needs, goals and accommodations

  • All school psycho-educational evaluations

  • All end of grade test results if not on the report cards

  • Any other performance test results

  • All school psycho-educational evaluations

  • All end of grade test results if not on the report cards

  • Any other performance test results

  • All awards

  • Documentation or photographs showing your children’s participation in any special educational activities (ex/ school plays, sports, band, etc.)  (put photos in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

Extracurricular Activities

  • Documentation or photographs showing your children’s participation in any extracurricular activities (ex/ sports, lessons, youth groups)  (put photos in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

  • Copies or photographs of all your children’s awards, ribbons, and trophies  (put photos in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

Physical Health Issues

  • A list of all physical health problems of the children, yourself or your co-parent along with a list of doctors or hospitals, with contact information, and dates seen by doctors or hospitalss

  • Copies of your children’s pediatrician records, all specialists’ records, and all hospital records (may be obtained on a disc)

  • At your lawyer’s request, you should also sign a release at each doctor and hospital (and provide a copy to your lawyer) so that your lawyer can obtain your children’s and your medical records (even though you provide copies of records to your lawyer, your lawyer will still have to subpoena them directly from the doctor or hospital if your lawyer needs them in court, for which they will need to attach a release or have one on file to abide by HIPAA privacy laws)

Mental Health Issues

  • A list of all mental health problems of the children, yourself or your co-parent along with a list of therapists, doctors, or hospitals with contact information, and dates seen by therapists, doctors or hospitalss

  • At your lawyer’s request, you should also sign a release at each therapist, doctor and hospital (and provide a copy to your lawyer) so that your lawyer can obtain your children’s and your mental health records (even if you provide copies of records to your lawyer, your lawyer will still have to subpoena them directly from the doctor or hospital if your lawyer needs them in court, for which they will need to attach a release or have one on file to abide by HIPAA privacy laws)

Child Protective Services (“CPS”)s

  • All notices, protection plans, family services plans/agreements, letters and other written documentation in your possession from all CPS agencies

  • All Court documents if there was a Court case

Criminal

  • Certified (notarized/sealed) copies of all criminal records for yourself, your co-parent and your children (You may need to go to the criminal clerk’s office in every county where criminal charges were filed to obtain these records)

  • Copies of all drug test results done by probation or elsewhere

  • A list with all contact information for all probation officers or juvenile delinquency case managers for all ongoing or recent probationary periods for yourself, your co-parent and your children

Domestic Violence

  • A certified true copy (with Clerks’s seal) of all Domestic Violence Protection Orders/Restraining Orders (“DVPO” or "TRO") and copies of all Petitions / Complaints for DVPOs/TROs

  • Photos of injuries and damage to property (put in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

  • Certified true copies (with stamp or seal from the law enforcement agency) of all law enforcement reports and 911 call logs from all domestic violence incidents

  • Copies of any diaries, emails, letters, texts, online posts or other writings that refer to (or contain) the domestic violence incidents, injuries or threats

  • A list of all physical or mental health problems due to the domestic violence along with a list of doctors or hospitals seen, with contact information, and dates seen by doctors or hospitalsCopies of all doctors and hospital records from the doctors and hospitals listed (may be obtained on a disc)

  • At your lawyer’s request, you should also sign a release at each doctor and hospital (and provide a copy to your lawyer) so that your lawyer can obtain your medical records (even though you provide copies of records to your lawyer, your lawyer will still have to subpoena them directly from the doctor or hospital if your lawyer needs them in court, for which they will need to attach a release or have one on file to abide by HIPAA privacy laws)

  • All things listed under Criminal, CPS, and Mental Health Issues above that relate to the domestic violence

    Child Physical, Sexual or Emotional Abuse

  • All things listed under Criminal, CPS, Physical Health Issues, Mental Health Issues and Domestic Violence above that relate to the child physical or sexual abuse

  • All audio or videotapes that pertain to the Child Physical, Sexual or Emotional Abuse (DO NOT MAKE ANY NEW TAPES BEFORE CONSULTING WITH YOUR LAWYER FIRST)

  • See my article on this website, “Protecting Your Child from Sexual Abuse”

Drugs or Alcohol Abuse

  • A list of all drug and alcohol problems of the children, yourself or your co-parent along with a list of therapists, doctors, treatment centers, or hospitals, with contact information, and dates seen by therapists, doctors, treatment centers, or hospitals

  • All things listed under Criminal, CPS and Mental Health Issues above that relate to drug or alcohol abuse

  • Copies of all treatment records from all therapists, doctors, treatment centers, or hospitals, including drug testing results (may be obtained on a disc)

  • At your lawyer’s request, you should also sign a release at each therapist, doctor, treatment center, and hospital (and provide a copy to your lawyer) so that your records (even though you provide copies of records to your lawyer, your lawyer will still have to subpoena them directly from the doctor or hospital if your lawyer needs them in court, for which they will need to attach a release or have one on file to abide by HIPAA privacy laws)

Home, Family & Friends

  • Photos of every room in your clean house or apartment, the outside and any play area (put in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

  • Photos of your children with family members and friends showing activities, sports, vacations, & holidays (put in an album, do not write on the photos what they are or the date — just number them in pencil on the back and create an index stating what they are and the dates and who took the photo)

READ PART 1:  HOW TO PREPARE FOR YOUR CUSTODY CONSULTATION

FOOTNOTES

[1] You may copy, print or re-post this article, but please include a link to www.ArlaineRockey.com.  If you have already hired a lawyer, you may want to provide this information to your lawyer if you haven't.

[2] This article is general legal information only. It is not legal advice for your case. You should talk to your attorney about your specific case before you implement any of these strategies.