Digging up the Dirt: How to Use Discovery to Gather Evidence in Your Child Custody Case
UPDATED: February 20, 2013
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A child custody case is a civil, versus criminal, proceeding. As such, your state’s rules of civil procedure will set out the methods of discovery you can use to gather evidence in your child custody case. Some states and courts will require the exchange of basic information automatically upon the filing of a petition. More information can be gathered through the filing of motions for discovery like a motion for disclosure, requests for admissions, and interrogatories. If there is a hotly contested issue, you may even want to consider depositions.
Some of the evidence you will need may be automatically required. Most child custody petitions should include information like identifying information on the child and the other parent, assuming you do not already know it. Some states or local rules require the parties to exchange financial, insurance, and residency information within a certain number of days after the filing of a child custody dispute. Even though this is not the greatest wealth of information, it is a valuable beginning to doing follow-up research through background checks on the other parent or the neighborhood they currently reside. From there, you can focus the rest of your discovery efforts.
Motion for Disclosure and Request for Production
A motion for disclosure is a good discovery motion to begin the formal discovery process in a child custody case. It requires the specific disclosure of information like persons who have knowledge of relevant facts, potential third parties (maybe someone else is the father of the child), and any potential experts the other parent intends to call. You can also file requests for production to gather any documents relevant to your child custody dispute. Documents you will probably need include income tax returns (for setting child support amounts) and the resume of any experts. If experts are going to play a large part in your child custody case, the more you know about the expert, the more you can be prepared to neutralize his or her opinion.
Interrogatories and Requests for Admissions
Interrogatories and requests for admissions are similar to a deposition but are in writing. Interrogatories are questions presented to the other parent that they must answer in writing under oath. Questions can include requiring them to explain why they should have custody of your child factually or legally. Requests for admissions are a set of very fact specific, “yes or no” type questions. They are generally phrased in terms of “admit or deny….” Even though short, they can be extremely valuable in gathering important admissions like use of drugs or relationships with sex offenders.
Written Discovery vs. Deposition
Written discovery motions are the most cost-effective way to gather information in a child custody dispute. Because of the expense of depositions, they are not frequently used to gather information in a child custody case. However, if your case is somewhat more complicated, you may want to consider it as an option for gathering information. A deposition involves the other parent arriving at an agreed location where they answer a set of questions in person and under oath. There answers are generally recorded by a certified court reporter, but can also be video recorded. This is the best technique for delving into complicated child custody issues.
Discovery from Third Parties
Most states will limit the use of formal discovery procedures to actual parties. This means that only the other parent can be served with requests for disclosure or admissions. If you need information from third parties, like your child’s school, you will probably have to file a subpoena duces tecum. This requires third parties to bring the requested information to you by a specified date.
Discovery procedures are extremely valuable in developing your child custody case. The more information you can gather, the better you can present your argument for custody. Keep in mind, though, that discovery procedures have specific timelines and requirements. Procedures also vary greatly by state. To avoid missing any opportunities in gathering evidence in your child custody case, consult with a family law attorney in your jurisdiction.