Testifying in Your Custody Case

Before you go to court, understand that it is better if you and the other parent can settle your case without having a hearing.  Not only is it less stressful and less costly, but it will be less damaging to your already strained co-parenting relationship.  If the two of you become even more conflicted, after the typical mudslinging of going to court, your children will either know about the court date or they will feel the increased tension leading up to it.

To illustrate the danger of going to court, a family attorney I know likes to take a plain sheet of paper and tell her clients to image the “paper” to be the most important issues they want resolved.  Then she begins to fold the paper into half, and states “This is how much you will be able to effectively communicate to your attorney.”  Then as she folds the paper in half again she states “This fold indicates how much of this information your attorney will think is important enough to document.”  For the next fold she says, “This is how much of your details will be included in court preparation.”  The next fold she states, “This shows how much your attorney will get across to the Judge.”  The last fold, which is about as small as you can make an 8 x 11 piece of paper, she says, “This is how much information the Judge will consider to make this very important decision about your case.  This is a real eye opener to most individuals.

However, if there is no way to settle beforehand and you are indeed going to have a court date, consider these recommendations:

  • Take into account everything you think you want the judge to know and narrow it down to no more than four or five main points.  Write these points in one sentence or a phrase such as, “Her refusal to communicate with me.”  Then review all of your examples and choose one or two of the best.  Ideally the examples will be ones that are by email or can be confirmed in some other way.
  • Review these main points with your attorney to make sure you both agree that they are the best examples. Sometimes clients are unable to determine this or they select ones that are important to them but not necessarily to the court.
  • Insist that your attorney role play asking you questions, especially the “cross examination” questions the other attorney will likely ask you.
  • Before your court date, go sit in the back of a Judge’s court room during an open custody case. This will help desensitize you to the courtroom and give you a less stressful exposure to the family legal process.  Ideally, ask your attorney when you may sit in the court room of one of their cases.  This will give you an idea of how they work.  Just as a surgeon may have no bedside manner, a family lawyer may sound great behind his or her desk but appear less than effective in the court room.  Hopefully this will give you confidence in your legal representation.

It is important to recognize that your attorney will ask open questions that will allow you to explain things that have happened.  This is called “direct.”  On the other hand, the other attorney will try to get you to say things that they want the judge to hear but not necessarily what you want to say.  This is called “cross examination.”  This will be more stressful for you as they will likely not want you to explain yourself.  They will try to cut you off after you give your “yes” or “no” answer.  They may even seem to be taking things out of context or even distorting what you know to be the truth, in order to create a picture that helps the other side.  Consider the following tips:

  • You may only speak when you are asked a question by either attorney.
  • You must answer with “yes”, “no”,“I don’t understand your question”, or “please repeat the question.” Only after you answer with one of these may you explain yourself.
  • Under cross examination, you will be asked a question that their attorney wants only a simple “yes or no”. This can be very frustrating as only saying “yes” or “no” will leave the wrong impression to the court.  Do not assume your attorney will say something to the Judge about you being cut off and unable to complete your statement.  You need to be responsible just in case.  So the key to answering under cross examinations is to make sure you say immediately, “however……”  For example, “Is it true that you lost your job once again?”  If you say “yes,” it may be misunderstood, especially in light of the picture the other attorney is trying to paint about you.  Instead you answer, “Yes-however, the company was closed and we all lost our jobs.”  If you pause too long after your “yes or no” you may be cut off by the opposing attorney because they do not want you to explain. Make your answer and your “however,” sound like one word rather than two. “Yes -however……”  “No- however.”
  • Cross-examination is like a game of chess. You need to be able to “see” where the attorney is trying to maneuver you.  Every question is geared to paint you into a corner that will leave your testimony working for the other side.  Knowing what they will ask you certainly will give you a general idea of what their main points are.  This will help you side-step the cross examination by being able to add your “however.”
  • If you are asked a question under cross examination that has more than one question in it, it is ok to respond with something respectful like, “I’m not sure what you are asking exactly.” Sometimes this is accidental and other times it is done to confuse you. Remain respectful and ask that he/she reword the question so you can answer.
  • Know ahead of time that you will likely get frustrated and even angry under cross examination. This happens especially if your attorney has not adequately prepared you with the type of questions that will be asked under cross examination. You need to practice answering these questions with your own attorney at least several days prior to court.  Insist upon them giving you the questions and having even a law assistant practice with you. Do not allow yourself to react to questions. Instead, take a breath and take your time to avoid impulsive or angry responses.
  • Wear a special bracelet or carry a worry stone in your pocket that can remind you to relax during testimony.
  • Do not take this legal process personally. The attorney cross examining you may act like they think you are horrible.  Unfortunately this is just part of their job to make you look badly to the court.  It has zero to do with what they may or may not think about you.

Some general tips for court include:

  • Dress and behave respectfully at all times. Your anger has no place in the courtroom.
  • Recognize the Judge may be making observations about you from the moment you walk into the court room.
  • Go to the bathroom prior to being called into the court room.
  • Have your main points memorized as small phrases because you cannot bring notes.
  • If you are there regarding your child, make sure you do not refer to your child as “my child” instead always say “our child” and start making this change right now rather than trying to remember in court.
  • Do not be totally critical of your co-parent on the witness stand. For every four or five negatives try to say something a little positive such as, “Although I believe Dad is harming our son by trying to coach him, I do recognize our son needs a healthy relationship with his father.”  You will be more believable if you can recognize the other parent’s value or their importance to your child.

If these tips are not enough to calm your fears consider meeting with a mental health expert who works with the legal system.  A testimony coach can supplement your attorney’s prep in a way that is often more down to earth and concrete then what the legal professional explains something from a legal point of view.

Understand that the law is not perfect and the good guy does not always “win.” Yes the law matters, but recognize that so does the subjective opinion of the Judge. If revenge is part of your motive, think again. If you have been emotionally harmed by the other parent and want your “day in court” you are likely to be disappointed and dissatisfied because you will be limited on what actually comes out in the courtroom.  Ultimately, the use of the court should be a last resort, for the sake of all parties involved, especially your children.

 

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