How to Present Evidence in a Child Custody Case in California
QUESTION: How do you document your evidence in a child custody case? How do you organize it and present it to the Court?
I am currently in a child custody case with my ex. I have numerous text messages and screenshots showing relevant events and facts I believe the judge should consider at our child custody and child support hearing. I don’t know how to organize it or present it to the judge. Is there a way that I can document everything, maybe using a spreadsheet of some sort? Is there a way to organize my evidence that the court requires?
ANSWER: You don’t state whether there is a hearing coming up. If you need custody orders you must file a Request for Orders FL-300. If your ex filed a FL-300 then you must file a responsive declaration FL-320.
You may want to use form MC-31, which is the judicial council declaration form that can be attached to your Request for Orders or Responsive Declaration in order to have more space to set out your position.
In the declaration you would state what your position is with respect to child custody: “I request _________ custody orders and I request _________ visitation schedule.
Then you describe why your proposed custody and visitation schedule is in the child or the children’s best interest.
BEST INTEREST OF THE CHILDREN: There isn’t a simple definition for the phrase “best interest of the children.” The term refers to the court’s process of deciding what parenting plan makes the most sense in light of all the facts. For example, with which parent should the children live? Should the children stay with each parent for about the same amount of time? Can both parents care for a
child or is one parent less capable? The Court’s look at the child’s needs and who is best suited to meet those needs. For more information on how the Judge decides child custody read this article.
PRO TIPS: It is rarely beneficial to engage in character arguments such as “the court should award me sole custody because the other parent cheats on their taxes.” “I should have much more time with our children. It’s in our children’s best interest because my ex’s is new significant other is a deadbeat.”
Instead, address specific facts: “Our children are both under 2 and the other parent has never changed their diapers, bathed them or fed them. While I want the other parent to have visitation, I don’t think it’s appropriate for the children to spend the night with the other parent because that parent does not have the ability to care for them.”
Another example: “Our children are in the 4th and 6th grade respectively and have gone to the same school since first grade. My ex has moved 75 miles away. My children love their school and don’t want to go to a new school. I suggest that the children live with me during the week and the other parent would have alternate weekends. We can divide the children’s breaks from school with the other parent getting some extra part of the spring and winter break.”
HOW TO PROVE THE BEST INTERESTS OF THE CHILD OR CHILDREN: You’ll need evidence to prove you that the custody order and parenting schedule you seek is in the best interest of the children.
In your declaration you should reference the evidence that you have. Here’s how to do it.
ADDRESSING EVIDENCE AND ATTACHING IT TO THE DECLARATION
For example: “Attached to my declaration as Exhibit 1 is a photo I took of texts received from my ex on March 2nd which shows ____________ (whatever it shows this is an example). Attached to my declaration as Exhibit 2 is a photo of both of my children which I took on December 17th of this year in the annual Christmas play. The play is a tradition at their school, and they are always very excited to engage in it. If the children have to go to a new school, they will miss out on this activity. And on and on for each piece of evidence. If you need more than one page for your declaration you can add form MC-025 (extra page).
Remember the photos(.jpegs) must be turned into .pdfs before you attach them to the declaration. You can use the free app genius scan to turn. jpegs into .pdfs. If you have a computer and access to Adobe Acrobat, you can prepare these documents at home. If you do not you can obtain copies of the forms described above from the courthouse and do it by hand.
FILING AND SERVICE OF YOUR MOTION ON YOUR EX
You have to file either your request for orders FL-300 including the declaration with the attached exhibits, or your FL-320 responsive declaration to request for orders with the attachments.
Once you get the court filed copy you must cause it to be served on your ex. Anyone over 18 can serve the documents except for you. A party cannot serve their own documents. You then have the server sign the proof of service, either FL-330 personal service or FL-335 for service by mail.
In the paragraph above I am assuming that you have already served the petition or been served with the petition and filed a response to the petition. If you are filing your motion with your petition and intend to serve the petition, summons and associated pleadings along with your motion you would use a different form for proof of service: FL-115.
You should try to serve your ex and file the proof of service with the court as soon as you can.
In other words, as many days before the hearing as you can have service performed on your ex. You have to serve a request for orders at least 16 court days (a court day is a Monday through Friday that is not a federal or state holiday. If you are filing the FL-320 responsive declaration, then you must file it and serve it at least nine court days before the hearing.
If you wish to serve these documents by mail, then you have to add five regular days to the periods described above. It’s complicated.
THE HEARING: When you get to the hearing the judge has usually read your papers and any opposing papers from your ex. The judge may ask you to give a summary of your argument so be prepared to do that. The judge may ask you specific questions. Make sure to take a breath pause between the completion of the judge’s question and the beginning of your response. This gives you a moment to fully absorbed the question and your responses are invariably better. Judges are generally visual learners. So, a good declaration which contains evidence is more likely to sway a judge then testimony alone.
If you are confident in your speaking abilities but less confident in your ability to write a persuasive argument and attach the exhibits, you may want to hire an attorney on a limited scope basis to prepare your pleadings, ensure they are filed and served properly. Having an attorney draft your documents but not come to court to argue on your behalf is a lot cheaper.
Galen Gentry assists clients in Los Angeles and Southern California with issues relating to child custody, and visitation and the modification of family law court orders. Mr. Gentry has 30 years of experience and can help people protect their families and their interests.
Call us to schedule a free consultation at 310 282 7521 or contact us here.