PREPARATION BASICS FOR A CONTESTED CUSTODY TRIAL

I. INTRODUCTION

Luck has nothing to do with winning custody cases. Wisdom, though helpful in the planning stages, has nothing to do with winning custody cases. Fairness plays little to no part in the winning of custody cases. You win custody cases through hard work, paying attention at every step of the process, and preparation, preparation, preparation.

To properly prepare a custody case, you have to be thinking about trial preparation from the first meeting. You should start preparing your theme and message for your case from the outset, and craft everything you do – your discovery, your depositions, your hearings – around this theme. If you wait until discovery is closed and trial is approaching to start developing your theme and your overall view of the case, it will be too late.

With this in mind, this article focuses on practical tips for preparing for contested custody trials in those situations that arise in almost every practice.

II. WORKING UP THE CASE

Working up a custody case is primarily a matter of gathering all your relevant information, developing your theme and theory for your case, and preparing your witnesses. Relevant information in a custody case will come from a variety of sources, including the client, medical and mental health care providers, school teachers, the opposing party, and others. It will likely be your job to ensure that, by the time of mediation and final trial, all available sources of information have been tapped, any potential exhibits that are responsive to a proper discovery request have been produced, and any potential witnesses have been identified.

To that end, consider creating a check list of those items you will want early in the case or that will take considerable time to accumulate. Use that check list throughout the case to ensure that you have not missed an important source of information. The following are items that you might want to include on that check list.

a. Custody questionnaires

Use a questionnaire to provide some basic information about what “conservatorship” means, and for your client to complete providing information about his or her case. A questionnaire like this is enormously helpful in preparing your custody case, as it can be used by you as a roadmap for developing and structuring your case, along with helping you figure out weaknesses in your case that you need to shore up. You want to get your client to fill out a questionnaire like this as early on in the process as possible.

b. Interviewing Witnesses – In a custody matter, the most important witnesses are those who have recent, firsthand knowledge regarding your client’s positive parenting skills. The best sources for this are usually persons who have daily or weekly contact with the child, such as teachers, coaches, caregivers, and other mother’s. Never overlook your intuition. Even a

1 witness with great information can be harmful to your case. If you feel there is more to the story, there usually is. If you have any hesitation about using a witness, don’t. Repeat the interviews with your witnesses until you are absolutely comfortable with the knowledge that you have all the information there is to have.

It is important that you focus on your client’s negative aspects as well as the positive in this initial process. The best mother in the world, can be the President of the PTA, a Girl Scout Leader and Sunday school teacher, but if she’s taking 20 Vicodin a day, you have problems.

Get control over your client weeks before trial. Educate them to the realities of trial, including a written overview of the trial process explaining everything from the role of court personnel, the fact that the trial proceedings are open to the public, appropriate dress, appropriate demeanor, as well as the basic summary of the order of trial proceedings. An educated client who knows what to expect in the courtroom will not be as subject to stress and will be better able to focus on his/her testimony and the analysis of the testimony of others.

c. Authorizations for disclosure

Much of the information you will use in evaluating and then presenting your case will come from third parties. Request from your client a list of mental and medical health care providers which they or the children have seen, and get signed authorizations from your client for access to their records. In addition, get information about each child’s school and prepare releases for school records. Even if these do not seem to be relevant issues at the beginning of a case, they may be later on, and having the authorizations ready to go may be important if time becomes an issue.

Send with each authorization a business records affidavit form for the custodian of records to complete and send with the records. This can be a much quicker and less expensive way of getting documents in admissible form than sending out a Deposition on Written Questions, which comes with lengthier notice requirements. If the entity which has the records balks at providing the information voluntarily, you can always come back and serve them with a formal Deposition on Written Questions if necessary.

Be mindful of HIPAA and other statutes relevant to the disclosure of personal health information. Nothing can put the brakes on a case like an assertion of privacy with respect to the disclosure of medical, mental health and substance abuse treatment information. If this is an issue in your case, request releases of this information from the opposing side early. The battle to get the documents could be a long and expensive one.

Remember that any records you retrieve must be filed with the Court 14 days prior to trial.

d. Formal discovery

Obviously, formal discovery is another important source of information in custody disputes. Sending out form discovery, however, might not be the most effective use of this tool. Taking the time to get specific information that may be incorporated into formal discovery can make a

2 tremendous difference in the effectiveness of discovery, particularly in the case of Requests for Admissions and Interrogatory requests. Consider the impact, for example, of asking about overnight guests generally versus asking that question and one about a specific overnight guest or a specific night.

Formal discovery can also have a significant impact in defeating a challenge to custody on modification. In that case, admissions and interrogatories tailored around the Texas Family Code requirements for modification and the pleadings filed by the opposing party can make directed verdict or summary judgment possible.

In any custody case, at the very minimum, you need to propound both a Request for 194 Disclosures and a Request for Production which requests documentation relating to the parties parenting skills, educational records of the children, medical records, investigator reports, diaries, calendars, tape recordings, photographs, checking and credit card statements, videotape recordings, and similar items. Going into a custody trial without knowing who your opposing party may call as a witness, and without knowing what exhibits he may offer into evidence, is simply too great a handicap for an attorney to try to overcome; if you are approaching your deadline for propounding discovery and you haven’t settled, it is imperative that you send out at least these basic discovery requests.

e. Private Investigators

It is not uncommon to use a private investigator for gathering evidence to be used for your temporary order hearing or at final trial. Once you have made the determination to hire a private investigator, take the time to do basic research into the investigator’s licensing credentials and reputation.

Once retained, determine the role you intend the private investigator to play. If you have hired him/her to simply gather facts you may choose to list him as a fact witness rather than as an expert. The downside to not listing him as an expert may be inadvertently preventing him from testifying as to the proper use of a highly sophisticated piece of equipment. Obviously, in listing a private investigator an expert you must give consideration to qualifying him by “knowledge, skill, experience, training or education”. TEX.R.EVID. 702.

As a cautionary note, there are serious privacy issues that may arise where a private investigator has videotaped a party, or performed a trash search. Make sure the investigator you hire has a clear understanding of the parameters of his investigation in order to avoid ‘invasion of privacy’ tort claims.

III. PREPARING YOUR CLIENT FOR “LIVING” A CUSTODY CASE

It may be a year or more after a case is filed before a custody case goes to final trial. While the groundwork for the custody case was laid by the parents in their dealings with each other, and the child, before the divorce was ever filed, it is critical that your client understand that the parties’ actions and behaviors during the pendency of the case have a significant impact on the ultimate decision by the trial court. Walk through with your client the guidelines for what to do

3 and how to act with the opposing party and the child while the case is pending, such as the following:

 Encourage the child’s positive relationship with the other parent no matter what. Stress to your client that there can be no alienation of any kind, indirectly or directly and make sure your client knows what that means.  Cooperate with any court-appointed professionals, such as mental health evaluator or Amicus Attorney  Actively seek information regarding the children, such as from schools, physicians etc. – don’t rely on information from the other parent  Actively participate in school and extracurricular activities  Exercise every moment of possession and access granted – ask for more time from the other parent in appropriate circumstances.  Actively participate with child’s doctor’s appointments  Avoid using babysitters during possession and access or routinely dropping off the child with family members unless absolutely necessary  Get the child’s friends involved on the weekends  Get to know the parents of the child’s friends  Address any issues pointed out by a mental health professional (for example, anger issues, concerns about alcohol, etc.)  Take a parenting class above and beyond the minimum required by the Court.  If there is a significant other involved, there should be no contact with him or her during periods of possession  No late child support or temporary support payments  Strictly adhere to temporary orders

IV. FINAL TRIAL

Many of the tips set out above are equally applicable to preparing for final trial as they are to preparing for a temporary orders hearing. The temporary orders hearing set the rules for your client to get through to final trial; final trial is the culmination of all of your efforts and your client’s efforts to gather the information necessary to finally resolve all outstanding issues.

a. Get organized. Make sure that your file is updated, organize and label trial boxes, and create a trial notebook so that all important information and documents are close at hand for trial.

b. Trial Notebook

A trial notebook should include:

 witness notes, including interview summary, contact information, an outline for direct and cross examination, references to exhibits, if applicable, and a copy of the witness subpoena  current, live pleadings  discovery responses

4  underlying order, if modification  exhibits (unless kept separately), with notes for offering each exhibit into evidence  proposals for final order  expert reports  deposition transcripts  working copy of your inventory, with a list of all exhibits to support each asset by number in columns next to each asset on the inventory

c. Judge and Witness Notebooks

You may also want to prepare judge and witness notebooks. The judge’s notebook can include live pleadings, agreed-upon exhibits and exhibits later admitted, discovery responses, relevant deposition transcripts and any pending motions you have filed. You can then refer the judge to the tabbed sections of the notebook as opposed to loose pleadings from the Court’s file.

The witness notebook should contain copies of those exhibits agreed-upon by you and your opposing counsel as admissible, and any exhibits admitted thereafter. This notebook can then remain by the witness stand for use throughout testimony by all witnesses, as necessary.

V. CONCLUSION

At the end of the day, trying a custody case is as much an art as a science. Decisions, especially by a jury, can sometimes hinge on the strangest, and seemingly most minor things. But by following the recommendations outlined in this paper, and putting yourself in a “trial” mindset from the beginning of the case, you can place yourself and your client in the best possible position to maximize your chances and ultimately succeed at trial.

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