Attempting to give guidance to various clients indicated a need for me to explain the hierarchy of witnesses for custody trials. As I have noted before, the quality of witnesses is more important than the quantity. However, some category of witnesses tend to be better. Thus, this hierarchy of witnesses who can provide relevant and credible testimony on child custody. Some witnesses, typically those who can testify about a discrete incident involving one or both of the parties, are not within this hierarchy. The witness who saw one party stab the other party with a knife may not fall within this hierarchy but should clearly be called as a witness. With that caveat, the hierarchy is:
1. The parties
The parties are clearly the most important witnesses in any custody case. It helps if that a can say nice things about the other party. It helps if a party is forthright and non-evasive on cross-examination. A party’s ability to clearly articulate facts and goals, and demonstrate facts through demonstrative evidence, is a prerequisite for a successful result. A substantial amount of trial preparation goes into developing my client’s direct examination and the opposing party’s cross-examination. A custody case that does not highlight these two aspects of the case has the wrong focus.
2. Caregivers for the child
The best non-party witnesses are those who provide regular care for the child at issue. Such witnesses can be pediatricians, counselors/therapists, teachers, coaches, and religious instructors. If a nanny had frequently interactions with both parents, a nanny can fall within this category. If the nanny was employed by one party, the bias concern reduces the value of that testimony. If there has been protective services or law enforcement interaction with the parties, such witnesses fall within this category.
These witnesses are ideal because their loyalty is towards the child and because they are in a position to know the child well. One doesn’t need these witnesses to say negative things about the other party—in fact, it can reduce their credibility if they talk ill of a parent without strong justification. Merely testifying that one’s client was an actively involved caregiver and a positive influence on the child is compelling when it comes from the child’s care providers.
3. Parents/custodians of the child’s friends
The next best witnesses are the parents or custodians of the child’s friends. Typically, these witnesses will have regular interactions with one’s client and the child. Often, they will have entrusted their own child to one’s client. A parent who interacts with his or her child’s friends often enough to know those friends’ parents is a parent who is both responsible and actively involved in the child’s life.
These witnesses can provide testimony about their observations of the party’s interaction with and ability to care for his or her own child, along with that party’s willingness and ability to care for the witnesses’ own child. Again, one doesn’t need these witnesses to say negative things about the other party. The fact that the parents of the child’s friends look to this party to arrange the child’s social calendar, and entrust his or her own child to that party’s care, is sufficiently compelling.
4. Friends and neighbors who frequently interact with the party and child
These witnesses are ones who observe that party parenting his or her child on a frequent basis but don’t actually have that party assuming responsibility for their own child’s care. Such witnesses can testify about the level and quality of interaction between that party and his or her child. The more frequent the contact and the less obvious the bias, the stronger that witness’ testimony. A best friend who sees the child a few times a year is much less useful than a neighbor who sees the child a few times a week.
If this is the highest level of witness (other than the parties themselves) that one can obtain for trial, one likely has a visitation, rather than custody, case. A responsible and actively involved parent should be able to obtain witnesses from categories two and three above.
5. Family or romantic companions of the party
This category of witness can provide useful information on custody, especially if they live or have recently lived with the party. However, their testimony is inherently suspect due to bias. Typically, these witnesses will provide testimony similar to friend and neighbor witnesses but sometimes they can also testify to that party’s caretaking of other children.
One caveat regarding this category: any non-sibling family member or romantic companion who lives in the child’s household must testify. Such testimony should, at a minimum, address that witness’ interactions with the child. When a party fails to call as a witness a non-sibling adult who resides with the child, it raises concerns that this person is problematic and a potential danger to the child. For the same reason, a resident adult sibling with a troubled history should also testify. If such resident-witnesses’ testimony will harm that party’s case, that party needs to either modify custody/visitation goals or the residential situation.
It is imperative that these witnesses do not trash the other party. Their bias already makes their testimony suspect. Trashing the other party renders their testimony more harmful than helpful. If these witnesses have observed the other parent doing things that are truly harmful or dangerous to the child, they can testify about that. Otherwise, they should not reveal their negative opinions about the other party’s parenting.
One should never lose sight that the parties themselves should be the most important witnesses in any custody case. However, in selecting additional witnesses for trial, a few witnesses from categories two and three above are vastly more useful than a dozen witnesses from categories four and five. It is the client’s responsibility to guide the attorney towards witnesses in these higher categories.
Good explanation of this kind of testimony and the value of the different types of witnesses. I have forwarded to family dealing with a problematic custody situation. Thank you for the guidelines. p