In custody battles, there are two sides to the story, and the truth often lies somewhere between the two. Whether a judge or jury, the factfinder must weigh the credibility of the witnesses and the evidence to determine what is in the best interest of the child(ren). In situations where the parties have differing accounts of events, which is often the case, corroborating evidence can be helpful to the factfinder. This article provides guidance in building a successful custody case, and cautions attorneys about clients collecting evidence to support their custody cases. It is understandable that parents fighting for their children would go to great lengths to obtain evidence, but they must respect privacy laws and not lose sight of the most important issue, which is parenting and acting in the best interest of the child.

Obviously, when two versions of a story exist, it can be helpful to have corroborating evidence to support the client's case. Some parents, however, will take this desire for documentation to an extreme and create more issues for themselves. Parties in custody cases usually have very little trust in the other party and fear that the opposing party will not be truthful in his or her testimony. This fear can drive people to be hyper-focused on obtaining evidence to support their side of the story and do whatever it takes to show that the other party is untruthful. As attorneys, we want corroborating evidence to contradict the "he said/she said" dilemma in custody cases, but it should be legally acquired and not to the detriment of using good judgment in raising the child.

Credibility of the Parent Is the Key to Success

In almost every case, the most important witnesses in a custody case are the child's parents. In preparing for trial, I always tell my client that he or she is my key witness. I stress to my client that his or her credibility is the most important asset in the case. I remind my clients that no one is perfect and that he or she should freely admit to "bad" facts. A witness can be imperfect, as we are all human and make mistakes, but lying or spinning the truth in any way is a dead end. If a party loses credibility by being dishonest, the custody case is over.