Proving Current Child Custody Arrangement is Not in the Best Interests of Your Child: What Documentation Should You Prepare?
Going through a child custody case is usually stressful enough to make most people go to almost any length to avoid a second or third round of litigation to adjust or make changes to the original Final Order. However, a large part of my practice in family court is representing parents who, for one reason or many reasons, have found themselves with no other choice than to file a child custody modification action. If you find yourself in this position, it’s important to know what documentation you’ll need to provide, both to the attorney you’ll hire to handle the case for you and to the Family Court mediator or judge, when trying to prove that the current custody order is not in your child’s best interest.
While every modification has its own nuances and there’s no possible way I could ever address every fact and variable that may lead to a decision that litigation is unavoidable, there are several types of modification cases that I see regularly enough to offer some basic guidance on how best to prepare your case. Keep reading to ensure you have what you need for any circumstances that may be similar to your situation.
Photographs & Video Recordings
The old saying “a picture is worth a thousand words” is true, and it rings doubly true in family court cases – especially when the well-being of children could be involved. In cases where a parent is asking the court to modify custody based on allegations of the child is being kept in an unsafe environment, being exposed to things they shouldn’t be, or being left unsupervised in dangerous or concerning situations, sometimes the best evidence is producing a photo or video showing the environment that has led to your filing the action.
Sometimes it will be easy to obtain photos and video recordings on your own, especially for things that are apparent from or happen in public spaces. However, if your allegations require obtaining photographs or videos without the knowledge of the other parent, it’s best to use a private investigator (P.I.) in those situations. If you suspect or have been advised you need to hire a P.I., talk with your attorney to find out which ones are the best in your area. Because this could be your most powerful evidence, you want to ensure its gathered and produced by the most reputable investigator firm you can afford.
Affidavits or Opinion Reports from Professionals
A lot of modification cases are filed on the basis of one parent denying a problem exists with the child or withholding some form of treating an issue with the child. It may be a medical diagnosis that one parent is refusing to provide or comply with the recommended course of treatment made by the child’s doctor, an educational need identified by the child’s school or other educational professional is being ignored and not supported by the custodial parent leading to serious and negative school consequences for the child, or any number of other issues that may come up during the pendency of childhood.
Given the number of parenting philosophies that are presented to a family court judge over the course of a week’s worth of contested hearings, it’s not hard to imagine how all the opinions and beliefs of parents can start to fade into the background. But what really stands out to any judge who may not know exactly what’s best for each individual child is a professional’s educated and well-cited professional opinion.
The judge knows that, for the most part, most professionals willing to submit an Affidavit or issue a professional opinion report stating a formal position on the issue or issues involving a child have likely spent many hours of their time reviewing the child’s history, the family’s history, and any other data they deem relevant (like medical records or educational records) to reaching that opinion than the judge will ever have to devote to solving the dispute alone. Unless a professional is known to be a “hack” within the community or has produced a report or opinion that is clearly not based on relevant facts and data, your case will be much stronger when presenting with a supporting “expert” opinion stating why your position is in the best interests of the child.
Emails & Text Messages from the Opposing Side
Whenever parties are in a dispute, especially divorced parents who may not even speak to each other much less be able to cooperate on matters regarding their children, emails and text messages can become incredibly powerful evidence of what one side said to the other. Often these documents show one parent’s true intent or motivation in a particular situation. They could also show that they were fully aware of the problematic situation that’s now before the Court and willfully chose to act in a way that would be detrimental to the child.
Affidavits & Testimony from the Opposing Side’s Family
In most cases, litigants will bring forth a host of affidavits from their own close friends and family members who have witnessed the concerns brought before the Court. However, most family court judges, mediators, and even Guardians ad Litem will tell you that those affidavits, unless they have eye-witness testimony about blatant harm or injury being done to a child, are “a dime a dozen.” Of course, your mom is going to write a glowing affidavit about you being Parent-of-the-Year and how her little grandchild couldn’t ask for a better outcome than to live with her beloved child. You get the picture.
However, if you are presented with a situation where even your ex’s family members know the situation needs to change for the child and they are willing to take a position in opposition to their family member in open court, those affidavits will be given great consideration since it happens so rarely. But tread carefully in this arena, even if it’s offered help at the beginning of a case. The person willing to submit an affidavit on your behalf may have their own axe to grind and by the time their live testimony would be necessary at a trial, they may disappear, taking with them some of your strongest evidence.
Also, be certain to carefully screen what they put in their affidavit to ensure nothing is taken out of context, based on hearsay, or misconstrued to fit their own agenda, all things that could come back to bite you later in the case. If you know that person and your ex have always had a strained relationship, it’s likely not in your or your child’s best interests to exploit that fracture in the family tree for your own benefit in a court case.
A strong case in family court is built upon independent and accurate facts, not on second-hand opinions, family gossip, or revenge agendas. Judges and mediators must make sense of a case that involves two parents who are at odds with each other over what’s best for their child, each with their own perspective on what’s best for the child they both (hopefully) love. Therefore, it’s always very important to present as much concrete, unbiased evidence as possible to prove your point. If you’re able to do that without burning any family relationship bridges on either side of the case, that’s always the most prudent path to take.
This is far from an all-inclusive list of what you might need to prove your custody modification case, I hope that it provides an great overview of the types of things you should be thinking about before meeting with your attorney to discuss filing the case. The attorney will want to know not just what your concerns are and what your desired outcome will be, but also what evidence you’re going to have right from the start to put forth this case.
Your attorney will know, better than you do, how much strain this new case will put on your family, and ultimately on your child during the life of the case. He or she will not want to take on something so important only to have it fall apart before it even gets going because you can’t back up any of the concerns or allegations you’ve made. Gathering all necessary documents and evidence you have to support your claims so your attorney can review them fully and discuss with you your chances for success before the judges in your area before filing a lawsuit will ensure a. much greater chance of success of having your concerns addressed in the most beneficial ways for everyone involved—but, especially for your child!
If you and your ex are at odds over how best to meet your child’s needs and you find that filing a custody modification case might be the necessary next step, be sure to reach out to schedule a consultation with an experienced family court attorney before making any final decisions. If you’re in South Carolina, it’s important to contact an experienced family court attorney like J. Benjamin Stevens today to discuss your child custody concerns. Even if you aren’t in South Carolina, Mr. Stevens is happy to offer referrals to a well-qualified attorney located in your state.
Ben Stevens has provided exceptional legal counsel and support to families throughout South Carolina for over twenty-five years, handling all matters of family law, such as divorce, separation, alimony, and child custody. Our firm is well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.
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Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.
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ABOUT J. BENJAMIN STEVENS
Ben.Stevens@offitkurman.com | 864.598.9172
Aggressive, creative, and compassionate are words Ben Stevens' colleagues freely use to describe him as a divorce and family law attorney. Mr. Stevens is a Fellow in the prestigious American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and is a Board Certified Family Trial Advocate by the National Board of Trial Advocacy. He is one of only two attorneys in South Carolina with those simultaneous distinctions. He has held numerous leadership positions in the AAML, and he currently serves as one of its National Vice Presidents. Mr. Stevens has a statewide practice and regularly appears all across South Carolina. His practice is focused on complex divorce and child custody cases.
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