While many types of evidence might help establish a substantial change1 to modify physical custody, some key statutory and evidentiary rules may help you understand how or if your proposed “evidence” might be offered and admitted at trial. For instance, a child’s attendance records, if he or she has excessive absences, may be evidence to show a substantial change, as the custodial parent is not getting the child to school. However, all evidence has rules governing if it can be used. In this blog post, three (3) key limits on evidence in child custody modification proceedings are analyzed.
The first is relevancy.2 In order for any evidence to be admitted in a child custody modification proceeding, it must be relevant to a modification of physical custody being in the child’s best interests. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action. So in a modification proceeding, a child’s favorite color would not be relevant. How a child is doing in school in a given parent’s custody is relevant.
The second is authentication. Taking the example already noted. The school attendance records could and probably are relevant in a child physical custody modification action. However, they are inadmissible hearsay unless accompanied by a statement of the record-keeper to authenticate the records. The statement of the record keeper must be made by someone with knowledge that the record was kept in the course of a regularly conducted activity of a business or organization and making the record was a regular practice of the business.3
The third (and type of evidence that trips a lot of litigants up in court) is the evidence relevant to the custody modification must be evidence that occurred after the last custody order. The court ordinarily cannot hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child. In other words, if the evidence of a DUI was used in the last custody proceeding, it probably cannot be considered the present modification action.4
As these rules may suggest, preparing a successful custody modification proceeding is a significant amount of work to identify the evidence and get it into an admissible format. In addition, taken on the whole, it must demonstrate a substantial change in circumstances and be in the child’s best interests to be successful. This is where a skilled lawyer can help you evaluate your physical modification objective and then assemble and present your evidence in a way that gives you the best chance of success. Ciyou & Dixon, P.C. advocates handle child custody modification cases and all other types of domestic law across the state. This blog is written for general educational purposes only. It is not intended as specific legal advice or a solicitation for services. It is an advertisement.