Direct Examination in Child Custody Trials

There are various ways to approach a child custody case. For some parents, thebest solution to negotiating things like parenting time, visitation, and custody, will be to consider an amicable approach featuring settlement negotiations, collaborative law or mediation. Indeed, many couples believe that mediation is a powerful option for cases regarding children, as it allows them to limit their risk of exposing the child to painful memories of their parents fighting or uncomfortable emotional experiences such as being interviewed by an Attorney for the Children, a forensic evaluator or a judge. However, avoiding court battles will not be possible for every case. In some instances, the only way to properly pursue the best interests of a child, will be to take the matter to a New York Family court or Supreme Court, and present it in front of a judge.

Litigation in family law is a complex, and often highly nuanced area. There are numerous skills, methods, and techniques that an attorney can use to sway the opinion of the judge, or potentially assist in outlining crucial points in a specific case. One common element of child custody cases, and indeed many litigation circumstances, is the use of “direct examination”. When properly done, direct examination in a child custody case can be used to demonstrate to the judge, or trier of fact, that a person’s request or plan for parenting time or custody is within the best interests of the child or children involved.

What is Direct Examination?

For those who are not already familiar, direct examination refers to instances wherein a child custody attorney questions his or her own witnesses during a trial, deposition, or case. Direct examination is about uncovering as much relevant information as possible from a specific witness that supports facts that someone needs to develop their story that they will tell during their summation at the end of a case.  In developing the questions to ask on direct, therefore, one should have their theme and story they intend to tell, as supported by the facts, at the end of the case in mind.  A child custody lawyer should ask themselves, “What facts can I bring out with my questions to support that my client’s desire for child custody and parenting time is in the best interests of the children?”  The witness can develop his or her answers in response to questions. However, a good child custody attorney may also use this method to highlight specifically relevant information for the judge who is the trier of fact in a child custody case.  A judge will usually sustain an objection to and not allow irrelevant questions.  In New York there are no jury trials for child custody matters. Because witness testimony is critical to developing each side’s case in chief, it is important to learn the rules about it.

Direct examination can be used as a technique of questioning the petitioner, plaintiff, respondent, or defendant in a child custody case. In other cases, it might be used to question an expert about their opinions regarding a case. For instance, some child custody cases might involve the direct examination of a forensic psychologist who might be able to offer advice into why one parent might be more appropriate for a child’s best interests than another.

The most significant difference between cross-examination and direct examination is that direct examinations typically don’t involve any kind of leading question. Leading questions are questions that prompt a witness to give a specific answer. For instance, questions that end with terms like “Isn’t that right?” Leading questions might be used in direct examination is when it’s important to information that no-one disputes – such as the address or name of the witness.

What Kind of Direct Examination Questions Might Appear in Child Custody Cases?

In order to make a decision according to the best interest standards of child custody, the courts of New York will need to consider many different factors. Direct exam can be used in some cases to help answer these questions on the behalf of the client involved. For instance, in the case of discovering the “primary caretaker” for the child involved, the attorney might ask focused questions about how the witness has cared for the child in the past, and how they might have been able to provide the bulk of the care required in looking after the child during a marriage or relationship.

Some courts will also want to consider the location or type of residency of the parent seeking child custody. In this case, a line of questioning could be brought into play that asks about to describe the property a child stays in when that witness exercises parenting time.  A custody lawyer can ask the witness to tell us about the location of the home where the child would reside. Often, courts will do what they can to ensure that the children involved in child custody and divorce cases are able to maintain the same, or a similar standard of living to what they might have gotten used to when the parents were still together. Asking a witness to tell us about the resources they may or may not have available to care for the child could be a proper line of questioning on direct exam.

Open ended short questions that start with “Who, what, when, where, why, explain, describe, how” with one fact afterwards is usually a good way to construct a question on direct.  For example, “Tell us how the child gets back and forth from school.”  Usually the questions asked of the witness should tell the story they have to tell about the custody and parenting time issues in question.  The story can start with the introduction of the witness with very brief background information about them like “What do you do for a living?”  The middle of their story should set the scene with details.  For instance, “Turning your attention to the day in question, did you see the child that day?”  “What time did you see the child?”  “Tell us what you observed?”  Questions that describe the actions should be elicited.

If the health of the parent in question, or the ability of that parent to care for the child has been brought into question by the other attorney in the case, then direct examination with evidence could be used to draw attention to the fact that a parent is fit to provide consistent care for the child. For instance, if a plaintiff claimed that a defendant was unable to provide adequate care because of physical health issues, questions could be asked about those concerns, and answered with the use of documents from doctors, or doctor testimonials (in proper evidentiary form, like certified medical records produced pursuant to a subpoena).

To learn more about the concept of direct examination, or to ask questions about your own family law case, please reach out to me, Mr. Darren M. Shapiro at your earliest convenience. You can either contact me via my free online form, or get in touch over the phone at: (516) 333-6555.

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