Cross Examination in Child Custody Trials and Hearings

When it comes to pursuing the best interests of a child in the case of “child Kitchen-couple-fight-300x200custody” there are many different paths for an individual to choose. For instance, some partners considering divorce who must think about child custody concerns will decide to undergo a professional course of mediation, Mediation allows couples to negotiate over potential outcomes for their child, in a setting that allows each side to have their say, without the emotional hardship of litigation. On the other hand, there’s also a “middle-ground” between mediation and litigation that’s known as collaborative law, where spouses will work alongside divorce attorneys and other experts to make decisions regarding parenting time and visitation rights.

Of course, there will always be some cases in which the only option to truly outline the best interests of the child, will be to take the matter to court. In front of the New York Court, divorce attorneys and child custody lawyers will attempt to present a case that shows their client as being the care-provider who can offer the best future for the child in question. This will help the court to make a decision regarding the “best interests” standard for child custody. To present a case fully, attorneys like Mr. Shapiro will frequently use questioning in the form of direct examination, and cross examination.

The Difference Between Cross Examination and Direct Examination

Both direct examination and cross examination can be used successfully by child custody attorneys in family law cases to present the elements of a specific case to the court. For instance, during direct examination, the purpose is to get the witness to testify about the facts that support the case of the party who called the witness to testify. The other parties or their lawyers then have the opportunity to cross examine that witness.  The purpose of cross-examination will be to support the party on whose behalf the cross-examination is being conducted.  Questions might be designed simply to bring out facts that support the cross-examiner’s side of the story of what is in the best interests of the child or children for custody and parenting time or perhaps to impeach the credibility of the witness that just testified on direct examination.

The main difference between cross examination and direct examination, is that cross examination can involve the use of leading questions, to press a witness into revealing the full facts of a case, rather than just the facts that they believe are beneficial to their chosen “side”.  Sometimes the cross-examiner is not actually adverse to the party that just had their witness testify on direct.  The cross-examiner might actually be asking questions that supplements or supports what the witness testified about on direct exam in that case.  However, the cross-examining lawyer may ask leading questions whereas the direct examining lawyer was prohibited from asking leading questions.  Leading questions are questions that suggest the answer.  For example, “You never changed the baby’s diapers, did you?”

After a petitioner’s/plaintiff’s attorney in a child custody law completes their direct examination, the respondent’s / defendant’s attorney gets to cross examine that witness. Often times there will be an attorney for the child who would then get his or her turn to cross examine as well.

The Complexities of Cross Examination

The child custody lawyer performing the cross-examination will want to control the witness.  Since trial is an exercise in storytelling, the cross-examiner needs to decide what questions to ask to support their client’s side of the story.  What version supports what they believe is in the best interests of the children for custody and parenting time?  It is important for a child custody attorney to control the witness on cross-examination.  Short statement type questions can be vital to control a witness.  Short questions that verify one fact at a time can be quite useful to control the witness.  For example:

Question 1:  “You went to the House?”;

Question 2:  “You saw the baby?”

Question 3:  “The baby was crying?”  and so on.  These questions might seem like statements but tone and inflection can be used to make them questions.  Simply adding the word “correct”  or “right” at the end could unequivocally make the above a question if there was an objection to the form of the questions.

Looping information from one question to another can provide smoothness to the questions.  Headline or transition statements when moving from topics can be useful as well on cross exam.  For example,

“Now I am going to ask you some questions about the night of July 28, 2017”.

“You saw the baby that night?”  and so on.

In the case of a child custody case, the process of cross examination can be one of the most stressful for all parties involved. After all, the process often involves the attempt to undermine the credibility of the witness by showing that the witness may be mis-informed or unreliable. Though it can sometimes be a stressful process, cross examination is also a critical factor when it comes to revealing the whole truth about a situation that’s pursuant to decisions made about the best interests of a child.

In a child custody case, an attorney might try to show that the witness is prejudiced or biased towards a party in a specific case, to help the court to see that the evidence that was shared by that witness may not be fully reliable. For instance, if the grandmother of a child speaks on the behalf of her daughter, stating that the daughter was the primary caretaker for the child, and the father did not provide adequate care to be given full custody, a cross examination might help the child custody attorney to outline why the grandmother is biased towards the needs of the mother, and how it’s important to take other testimonies into consideration.

Sometimes less is more so to speak.  In other words, once the purpose of cross examination has been obtained, the cross-examiner can stop asking questions.  At other times it might not even be necessary to cross examine at all.  If the witness really did not hurt a party’s side of the case, not cross-examining them can be an effective statement that suggests that witness added nothing to the other side’s case.

How Cross Examination is Used in Child Custody

In child custody cases, the aim of direct and cross examination may be to help the court determine which parent is most able to offer care that is in the best interests of a child. Additionally, cross examination may be used to outline that a specific parent should not be allowed visitation rights, or that the parenting time given to a particular guardian should be monitored to protect the safety of the child or children involved.

For instance, in a case surrounding child custody wherein the plaintiff claims that the defendant is abusive, cross examination may be used to examine evidence that proves that abuse. The plaintiff’s lawyer would cross examine witnesses that testified that the alleged abuse never happened, to help undermine their credibility and draw more focus to the evidence that he or she provided. On the other hand, the defendant’s lawyer might cross examine the witnesses who claimed to provide evidence of abuse, to cast doubt on that evidence and help to ensure that all of the right data is being evaluated by the court.

Ultimately, the idea of cross examination in family law is to give the court the best possible understanding of each situation as it relates to the child’s best interests. In child custody cases, the courts can only look at the past, and the evidence provided to them about what behavior has taken place throughout the marriage, to predict the best future for the child. In cases such as these, the more information revealed by cross examination, the better.

To learn more about the details of cross examination, and other tactics that might be used in family law or child custody cases, please contact Mr. Darren M. Shapiro at your earliest convenience. You can get in touch through our online form to schedule your free initial consultation for up to 30 minutes, or contact us over the phone at: (516) 333-6555.