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Tatiana Mendez, Esq.

What Evidence Can I Use In A Custody Case?

The rules of evidence are incredibly complicated and complex and require thorough understanding before going into a custody trial. I’ve seen attorneys sink or swim when it comes to evidence, and even judges have gotten the rules wrong.

There are two main types of evidence: testimony and exhibits. Testimony is spoken evidence from witnesses. Exhibits can be almost anything—documents, photographs, videos, records, emails, text messages, or even objects. Getting the judge in your case to listen to or look at, and then consider your evidence is one of the trickiest parts of a trial. You can use almost anything as evidence as long as it relevant and does not violate the rules of evidence.

What Is Hearsay?

The biggest pitfall that people fall into is not being able to get their evidence considered by the judge because they do not follow the rules of evidence. The most common objection regards hearsay evidence. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. For example, if your child told you they prefer to live with you, you are not allowed to testify regarding what your child said if you’re trying to use their statement to prove that they prefer to live with you. The child’s statement would be hearsay because it was made outside of court. If you wanted to get this evidence in, either the child would have to testify in court or you would have to get the child to tell the guardian ad litem, who could then consider the statement when they make their recommendation.

Both testimony and exhibits can be excluded from evidence if either one is considered hearsay. To get around the hearsay rule with documents, a document needs to be properly authenticated. For example, if you want to submit a letter from your child’s teacher, you need your child’s teacher to be present to state that they are the one who wrote the letter and it has not been altered in any way. Without the teacher present, the contents of the letter are not admissible evidence to prove anything alleged in the letter, because it would be an out-of-court statement offered for its truth.

If you wanted to submit that same letter for a different reason other than for its truth, then it would be admissible. For example, if the teacher sent a letter home that said something like, “I think that little James has the flu as he was not acting like his usual self.” Mother then picked up the child from school and took him to the doctor. She wants to introduce the letter as evidence to prove why she took the child to the doctor. The letter could be used to explain the decision she made, but could not be used as proof of James having had the flu. The decision Mother made is separate from the substance of the letter, so she could introduce the letter in court by saying, “This is what I received that caused me to make the choice I made,” or, “This is what I received that gave me that opinion, regardless of whether that opinion was correct.” In this case, the letter would be admissible because it’s not being offered for its truth. In other words, it does not matter whether James actually had the flu because the reason that statement is being offered as evidence is to explain why Mother took him to the doctor, not to prove that he was sick. As you can see, it’s a very tricky rule, and I have seen attorneys (and even judges!) get it wrong time and time again. The key is that it is hearsay if the statement was made out of court, by someone who is not available in court to testify, and is now offered for its truth.


There are two types of witnesses: lay witnesses and expert witnesses. Most witnesses in any custody case will be lay witnesses, but it’s not unheard of to have several types of expert witnesses in more complicated cases. The main difference between them is that lay witnesses can testify only to relevant facts and observations they have firsthand knowledge of, while experts can give their opinions in their expertise. Generally, lay witnesses cannot give their opinion, and no witnesses can testify as to a conclusion of law. A witness can be qualified as an expert by knowledge, skill, education, experience, or training in the specialized field.

How Far Back In Time Can Evidence Go?

Another important consideration to know regarding evidence is that, in general, you can only present evidence of events or information that happened after the entry of the last court order. That means that if parties were divorced five years ago and have been following the custody and visitation schedule in their final decree, then they can only use evidence that happened after the divorce was finalized if either party petitions to change the schedule. The logic behind this requirement is that anything that occurred before the current court order was already considered when that order was decided, so there’s no reason to re-litigate things. In most cases, only allowing new information to be considered does not present a problem; it streamlines the process and makes it easier to keep track of what is and is not relevant.

Sometimes, however, it can complicate cases, especially if there’s something that occurred prior to the last court order that hasn’t occurred since then but should still be considered, such as in domestic violence or abuse situations. Sometimes, you’ll have a divorce initiated due to domestic violence, and there has been no more domestic violence since the divorce because the parties don’t live together; that doesn’t mean the child would not potentially still be in danger if they were put into the abuser’s care.

If there has never been a court order, then evidence can go as far back in time as you want, but it still must be relevant. If someone was convicted of a DUI, for example, it would make a difference whether the incident occurred last weekend or 10 years before the children were born.

Overall, it is tricky to navigate the rules of evidence and to figure out how to get all of the information in. That’s really where a great attorney comes into play.

What Evidence Do I Need For My Custody Case?

Judges decide child custody cases by trying to determine what is in the best interest of the child. When I begin a custody or visitation case, I often will print out a list of the Best Interest of the Child Factors for my client, so that they keep them in mind when things occur and can figure out whether the evidence they have is likely to be helpful. A timeline of the facts and incidents that have occurred is a good place to start. Keep a calendar showing when each party has the children and notate any significant events on it, such as if a party did not show up for a child exchange, or missed a parent/teacher conference. I tell my clients to document everything, but to make sure it is done in a cohesive manner that can easily be understood by an outside person. There is often an incredibly massive amount of evidence in custody cases, and organization will go a long way.

Really, any evidence that helps to explain your facts and supports your position is helpful. The reality is that you know your story better than anyone else; you are living it! Tell your attorney your story and then back up each part with evidence, which can be anything from photographs, videos, medical records, school records, and text messages, to phone records.

Do not neglect your witnesses! Ask anyone that you’d like to testify in court of your trial whether they would be willing to help you in your case. It’s better to have people present who want to be there to help you, rather than witnesses who were subpoenaed to be there 10 days before trial and would rather not be involved in the first place. Speak to the children’s teachers and doctors and find out what the opposing party’s involvement is with them as well.

Consider what the opposing side is likely to say about you and prepare to handle that as well. Look at the social media of the people involved. Take screenshots. Assume that they are doing the same and act accordingly.

For more information on Family Law in Virginia, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (757) 289-2499 today.

 Tatiana Mendez, Esq.

Call Us Now For A Personalized Case Evaluation
(757) 289-2499