The Judge decides custody based on the “best interests” of the child.  If you want the Judge to have accurate information when deciding your custody case, you need to gather evidence.  The evidence you provide can help you prepare for your case and give you the best chance of winning child custody. Here, you will find some of the parents’ top questions with suggestions about child custody and the evidence most often needed. While this general information will help you start to think about what may be needed to approach a child custody hearing with confidence, it is always advisable to get legal advice on your specific situation by consulting with a child custody lawyer near you.

What Evidence Do I Need for Child Custody?

Begin Collecting Evidence Immediately

Calendar important dates and events as soon as possible before evidence is lost and events are forgotten. Photos, text messages, or other documents should be stored in a secure method.  Make a backup of your most important evidence now.

Types of Evidence

Keep copies of your communication and correspondence with the other parent. The evidence often offered in today’s child custody trials includes copies of texts and e-mails of the parties.  Other common evidence includes the parties’ income information (often tax returns and paystubs), photos and sometimes calendars.  Documents held by third parties about the child or the parents, such as medical records, school reports (report cards), and police reports are also common.  Less common, but also sometimes used, are things such as audio or video recordings.

What evidence to offer in a specific case depends on what the allegations are and what the disputed facts are.  If a fact is undisputed, you likely won’t need to offer much, if any evidence, to convince the judge it is true.  If an important fact is disputed in your case, you might want to offer multiple sources to show that what you are saying is true.  This could be copies of text messages between the parties regarding the subject, reports or other documents to show that third parties agree with you, and testimony from witnesses at trial regarding the issue.

Although you may want to keep copies of your communications with the other party, the ones that are likely to be offered as exhibits are generally just a small percentage of what is saved.  If you and the other parent are constantly fighting, the Court likely only needs a small sample of some of the best illustrative examples of this type of communication between the parties.

Keep in mind that the Court expects that the parents are fighting and that they can’t reach an agreement.  You wouldn’t be going to trial if the other party was willing to work with you.  Thus, the Court is likely to be most interested in exhibits that help decide a contested disputed fact and generally have little interest in exhibits that show the other party is not being nice or fair with you.

Witnesses on the Stand

Most of the time at trial is spent with the Court hearing the testimony of witnesses.  These witnesses can assist the judge in determining the legitimacy of the claims and allegations in a custody case. Both parties are usually called to the stand to testify.  Friends and family are often common witnesses.  If a fact is disputed, the most influential witnesses are often those seen as impartial.  Expert witnesses may be necessary, such as therapists or medical practitioners.  If someone who is normally seen as partial to the other party (such as the other party’s mother) is willing to testify in your favor, this can be some of the most influential testimony.

Start making a list of potential witnesses such as teachers, medical practitioners, co-workers, and neighbors. Provide your child custody attorney with the list of witnesses early on in the case. This will give your attorney sufficient time for preparation and witness interviews as may be necessary.

Once you are given a trial date, let your witnesses know to make sure they can be available if called to testify.

A Child’s Testimony

A common question is whether the child will testify.  At least in Nebraska, there is no set age that which a child has a right to testify.  In fact, the child has no right to testify and no right to choose which parent they want to live with.  The parents have a right to call witnesses, but the Court ultimately decides whether the child is of suitable age and discretion to be able to testify.  Even when the child is allowed to testify, the Judge can ignore the child’s preference if the Court believes their choice is not in their best interests.  That being said, the Court generally allows older teens to testify and their preference is generally given strong consideration.

Very young children, such as 7 to 8 years old and younger, almost always lack the maturity and understanding of the effect of the words necessary to testify regarding the custody issues.  The close calls tend to be among those in their late pre-teens and early teens, such as 11 through 14-year-olds. Some judges are much more willing to allow a child to testify than others.  When a child does testify, it is often “in camera.”  This means that the child would testify with the judge and attorneys present but not the parents.  Often it is in a more laid-back setting, such as the judge’s office instead of the courtroom.  The truth though is that only a very small percentage of cases have a child testify.  Usually, a child’s testimony isn’t until the trial date or very close to it.  As most cases settle before trial, the child never testifies.  Even when a case goes to trial, the child generally is not called a witness in most custody cases.

A Child’s Best Interest

Your evidence must demonstrate clearly that awarding you custody of the child is in the child’s “best interests.”  The criteria the judge uses when determining best interests can vary depending on the facts of the case.  In Nebraska, the judge must consider the following factors, but is not limited solely to these factors:

  • Relationship of the child to each parent
  • Child’s preference
  • General health, welfare, and social behavior of the child
  • Credible evidence of abuse

When determining these factors the Court might look at:

  • Child’s grades in school
  • Child’s behavioral or social issues if any
  • Each parent’s involvement with school and homework
  • Each parent’s time with the child and activities with the child
  • Child’s health
  • Each parent’s involvement with the child’s health care and appointments
  • Abuse/Neglect/Domestic Violence
  • Substance Abuse
  • Parent-Child Relationship
  • Child’s relationship with other children in the parents’ homes
  • Ability to Co-Parent
  • Living standards and situation
  • Child’s Preference
  • Logistics – does the parent’s work schedule cause them to be unavailable to provide care?

Your Calendar

While journaling is almost never recommended, it may make sense to keep a calendar or log of the important dates and events.  Rarely is each parent’s amount of time with the child disputed.  However, if a parent repeatedly misses time, is denied time, or is late, it may make sense to keep a calendar or log of the events.  This way, you can testify with a specificity of the dates and times of the missed occurrences.  Keep in mind that the calendar or log should be facts only and without additional commentary.  If you can’t help but add your comments, then it may be better not to keep a calendar or log.

Don’t Sabotage Yourself

Stop creating evidence that will help the other parent’s case.  If you’ve engaged in name-calling or obnoxious behavior with the other parent, stop now.  Your communications and interactions with the other parent need to be business-like and professional.  Even if the other parent is rude or immature, you need to be the bigger person. This can make or break your case.  Keep your personal business private.  Don’t post about your court case or about the other parent on social media, even if the postings are supposedly about other parents in general and not specifically about the other parent in the case.  Be an advocate for your child.

Don’t sabotage yourself by taking the child to school late, failing to attend parent-teacher conferences, failing to help with or check homework, etc.  If you believe the other parent is abusing you or the child, you need to immediately report it to the authorities and move out if you are not safe.  It is much harder to convince the Judge that you believe the other parent is not a safe caregiver if you continued to live with them after you believed your child was not safe in the home.  Have stability in housing and employment.  The Judge generally doesn’t care where you live or where you work, but a parent that keeps moving from job to job or place to place will have to explain why they don’t have more consistency.  An otherwise great parent can lose custody if they lack consistency.

What Is the Difference Between Legal and Physical Custody?

Legal custody refers to who gets to make the major decisions for the child. The parent with legal custody decides what school the child attends, whether the child has a medical procedure, etc.  On the other hand, physical custody refers to how much time the child spends with each parent. A parent can have joint legal custody of a child even when the other parent has physical custody.  Even when a parent has sole physical custody, the other parent almost always still has set parenting time with the child.  At least in Nebraska, a common schedule for a non-custodial parent is to have time every other weekend and an evening or so per week.  Think through all of the child custody options, including joint custody, before deciding on what type of custody you want to pursue and what evidence you may need to gather.

When Should a Temporary Child Custody Order Be Sought?

Many states allow a temporary child custody order during the period between the court case being filed and before the final order.  The temporary order won’t address all the issues in the case, but will generally include a temporary order as to who has custody while the case is pending, each parent’s set parenting time while the case is pending, and some financial issues such as child support.  It can also be an opportunity to get some gauge as to what the judge might order if you do decide to take the case to trial.  For parents that are fighting over custody, the temporary order may decrease some of the parties’ tension by at least set forth a specific schedule that each parent has with the child each week.

Do You Need a Child Custody Lawyer?

Even if you have been through a child custody procedure before, it is always advisable to seek a qualified, local family law attorney. If you know that the other parent has legal representation, then it is even more important to hire a qualified representative.  If you can’t afford a full retainer, there are many lower-cost options available.  These include non-profits that provide pro-bono or low-bono services for those who qualify and legal assistance for a smaller retainer for limited scope work on just one part of the case.

Additional Reading:

Establishing Paternity, Custody, Parenting Time, and Child Support – State of Nebraska Judicial Branch

Nebraska Revised Statute Section 43-2923 “Best Interests of the Child Requirements”

https://nebraskalegislature.gov/laws/statutes.php?statute=43-2923

Can Social Media Be Used in Custody or Divorce Cases?

Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha

Child Custody | Child Support | Divorce Lawyers Omaha

If you are looking for an attorney in a child support case or divorce in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, and Lancaster), contact our office to set up a consultation.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.