You may be thinking, “Evidence, this isn’t a crime scene, evidence of what?” There are at least three major reasons you will need to gather and supply evidence during the discovery phase of your litigation: child support calculations, legal custody decisions, and visitation rights.
For starters, the courts will have to do a calculation to figure out who owes who child support and for how much. Both parties will need to turn over all their financial records, and attorneys will want to see all kinds of documents to make sure no one is hiding income to tilt the calculation in their favor. This can be especially important when one party owns a small business or gets paid under the table in cash or other unconventional means.
Another need for evidence will be if one party is contesting joint legal custody. If one party is making the claim that the other parent should not have decision-making rights, they will need to show the courts some justification for this request. If you ask for sole legal custody, the implication is your child would be better off without the other parent’s input in crucial life decisions, either because of their long history of poor judgment or for some other reason.
Visitation is the third major area where evidence comes into play. In my case, there was powerful evidence in favor of immediate overnight visits because I had seen my daughter every single weekend of her life. Most of my recent visits were unsupervised once the court insisted on it at the Pendente Lite hearing several months prior, so there was really no legitimate reason to delay or phase in overnight visits.
There can be legitimate reasons to protest unsupervised or overnight visits, including substance abuse, domestic violence, or mental illness. Each of those are serious accusations, and you should not even think of making them unless you have genuine evidence to back up your concerns.
You should also know there are rules about evidence that lawyers follow. Without getting too in the weeds here, the evidence has to be unaltered, taken in context (rather than taken out of context), and sharable in advance during the discovery phase.
For example, if you want to show a nasty text message that someone sent you, you cannot just present a few rows of offensive words by itself. You cannot alter or highlight parts to make them stand out. You have to share the entire history of all text messages between the two parties in advance during the discovery phase. It must include everything relevant to the situation, not just the nasty lines you want the judge to read.
Let’s say in your trial, an attorney presents something like, “on page fifty-six of your text messages with my client, there is a text that says XYZ…” But, the opposing attorney must have the chance to cross-examine with something like, “yes, but on page thirty-two, you sent a contradictory text that says ZYX…” The judge must be able to read the full context of the larger conversation. Everything must be shared with the opposing attorney in advance; otherwise, it will likely be inadmissible in your trial.
Now, is it likely the judge will be influenced by the nonsense the two of you texted or emailed back and forth to each other all year? Probably not, especially if it is just emotional garbage.
But be advised that all emails, texts, photos, and voicemails will be fair game.
So if your co-parent is trying to paint you as a drunk, you probably don’t want to text about the weekend bender you were just on while the other parent was watching the child. You don’t want to give your opponent any material that could be potentially harmful in a trial. Best to keep your messages polite, cordial, and informational based. No sarcasm. No swear words. Keep it clean, and no one can accuse you of being otherwise.
Your lawyer will guide you on evidence rules, so there is not too much for you to worry about here, except for one crucial thing. Video and audio recordings have special rules that vary from state to state. Some states allow for hidden recordings, meaning recordings are permitted without the person’s expressed consent, and other states do not.
If you are in a state that requires consent, do not, under any circumstances, make an audio or video recording without getting consent on the recording from the person you are recording. Not only will the evidence be thrown out of your custody trial, but you will also be inviting a serious criminal or civil lawsuit. Check Google to see what the rules are in your state.
We were quite surprised at the amount of work that discovery involved in our custody battles. Junior legal associates (cheaper) do a lot of the leg work, but regardless, the hours involved for both you and your attorneys are just staggering. After all, your lawyer can only prepare the evidence you provide her. She cannot gather your bank statements and answer long personal questions without input from you. The discovery process will cost you not only money but also many, many hours of your life.
The Discovery Phase of your Custody Battle
First, you are likely to get a long list of “interrogatories,” which are pointed questions that you must reply to in writing under oath. Well, actually, you must pay your lawyer to type up your answers in an official response that gets filed with the court. Two examples of interrogatories I received from the opposing attorneys were:
“List and itemize any and all additional financial benefits that you receive from your employment, including but not limited to rental reimbursements, travel expenses, entertainment expenses reimbursements, use of a company car, reimbursement for the use of your own motor vehicle, and state the amount of such benefits that you have received from your employer during the past twelve months.”
“Describe in detail the nature of any and all disagreements which you and the Defendant have, or have had, concerning your daughter, including but not limited to previous visitation, the child’s religion or religious upbringing, future daycare, health care, education, living arrangements or other matters on which you have not been able to agree.”
Discovery also includes “document requests” in which you are asked to turn over every monthly financial statement going back about three years, including investments, checking accounts, credit cards, paychecks, tax returns, and even applications for loans. Every email and text message between you and your co-parent must be disclosed whether you think it’s relevant or not. Your personal calendar and journal, any receipts or photos that matter, the list goes on and on. It can be boxes and boxes full of documents if you have to print them, which you did back then. And then you pay your lawyer to look through all the documents from you and from your co-parent, which amounts to many hours of billable work.
I can remember dutifully producing and categorizing every document that I was asked for. However, I realized you cannot force someone to produce a document they don’t want to produce. They will say it's lost or unavailable or some other excuse for it not being there. The trial will go on, and the judge might shake his head in disgust and maybe slap them on the wrist, but if it’s not there, then it’s not there. A critical missing document, like a tax return, might cause serious repercussions, but a minor missing document like a specific email, won’t stop the trial from proceeding.
Third, in some cases, discovery will include “depositions,” which are in-person interviews where you get grilled under oath by the opposing attorney during the discovery phase, months before the trial. Your answers are recorded (perhaps even on video), and the interview can literally go on for as long as the attorney wants to take it. You can be sure the transcript of everything you say will be combed over and used against you in the trial if they can show that you contradicted yourself in any way. Again, your attorney will rack up many billable hours to prepare for the deposition, actually sit through it (both in your defense and when deposing your co-parent), and afterward to analyze the transcripts.
Finally, in some cases where people really want to throw their money away, there will be so-called “expert witnesses” called into play. This happens when, for example, one parent hires a child psychologist or physician to testify about some specific concern. To be a credible witness, they have to spend many hours with the child, and they often charge as much or more than attorneys do. The standard legal response to one party introducing an expert witness is simply hiring an opposing “expert,” paying them to spend the same number of hours with the child, and testifying to the complete opposite point of view. Thankfully, we avoided this charade because our children had no special needs, and our lawyers told us that any “experts” generally cancel each other out in the trial and so they are just not worth the money unless you have an extraordinary situation.
Money Down the Drain
The discovery phase of your custody battle starts about four to six months after your lawsuit begins. As we mentioned in our recent post Custody Litigation Timeline, if you make it to the discovery phase, expect the legal bills to start growing exponentially.
Most people are stubborn and like Jessica and me, and they don't settle their case until days before the trial. This is such a shame because perhaps 85% of the legal bills come in the months leading up to the trial, and most of them are related to discovery. Avoid this tragedy by reading our book, get your co-parent to read it, and then settle your litigation as early on as possible, ideally before the discovery phase begins.
-Jim & Jessica
Jim and Jessica Braz are not lawyers. While they have real-life experience in the issues discussed here, they do not give legal advice on this website. Furthermore, child custody laws, child support calculations, and family law, in general, vary from state to state. Be sure to consult an attorney in the appropriate state for your custody litigation.
Jim and Jessica Braz are not doctors. While they have real-life experience in the issues discussed here, they do not give medical advice on this website. Be sure to consult your doctor on your specific medical situation.
Jim and Jessica Braz are not licensed therapists, mediators, or counselors. While they have real-life experience in the issues discussed here, you should consult licensed professionals as needed.
The advice given on this website does not hold Jim and Jessica Braz legally liable for any adverse outcomes you may have from following their advice.
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