Building Your Case to Protect Your Child

1. Documentation

By Laura Stevens, WFJ Advocate

When we talk about documenting child abuse, we are not just talking about taking pictures of physical evidence or the witnessing of an act of abuse. Of course those things need to be documented but documenting child abuse is more about documenting the effects of abuse rather than the abuse itself. You will mostly be documenting how the abuse affects the child behaviorally, socially and emotionally.

Documenting child abuse is painful and tedious but it is very important as it will be used for many purposes. It will enable you to keep a timeline and better prepare you for court proceedings. If you retain an attorney, it will give them the succinct and pertinent historical information they will need to build your case. Additionally, it will aid you in your recollection for future reference, whether for court preparation or talking with child services, therapists, counselors, police, school facilitators, etc.

Remember, you may be documenting child abuse for many years to come. Over time, documentation can show a correlation between the abuse and the child’s behavior. It can also show a pattern in the child’s behavior and spikes in their behavior may emerge. For instance, after spending a weekend with the abusive parent, school reports show that the child is sluggish, lacks focus and/or the behaviors in school are higher after that visit.

Unfortunately, proving child abuse may never happen. And many families will have to endure the child abuse for many years to come. Many times, protection from the court may only come after years of showing that a pattern in behavior most likely stems from abuse. For instance, the child may have to have years of documented behavioral referrals from school, which may include fighting, inappropriate sexual talk and behavior, defiance, inability to make and/or keep friends, emotional outbursts etc… The child may consistently be removed from sports teams or extra-curricular activities due to behavioral or emotional issues. The child may be diagnosed with medical issues like Post Traumatic Stress Disorder (PTSD), Oppositional Defiance Disorder, Depression/Anxiety, etc. Although this documentation does not prove abuse has happened, it does prove there are serious issues affecting the child and abuse can cause all of these types of issues and behaviors. This documentation is just one piece of your case but it is a huge piece that cannot be denied or overlooked.

The documentation of child abuse takes on many forms and can include many facets:

Document what a child says to you.
Document the child’s behavior.
Document what you witnessed.
Document what teachers, coaches, therapists say to you in regard to your child’s behavior and/or concerns they may have with your child’s emotional wellbeing.*
Document dates and times of therapy visits.
Include any documents that show or could show a correlation between abuse and behavior.
Include documentation showing any and all school behavior warnings, issues, referrals, suspensions, expulsions.
Document bed wetting, long after being potty trained.
Document inappropriate fears.
Document problems sleeping.
Log photos of physical evidence.
Log videos or recordings of abuse and/or the child’s behavior that seems inappropriate or disturbing.
Log inappropriate or alarming drawings or writings the child may make.
Log emails/texts/documents etc… from social services, therapists, school authorities, police, doctors, etc…
Log email/texts/recordings from the abuser**

*If you receive phone calls from school, coaches, therapists etc. regarding your child’s behavior and/or concerns they may have about your child, ask them to send you an email regarding the behavior or concern. An email directly from them is stronger documentation than you just writing down what they said. If that is not possible, then write down the date, time, person you spoke with, organization they are with and what they said.

**Many times phones are not allowed in court or the text still on the phone is not allowed in as evidence so don’t plan to show texts on your phone, Be sure to print out texts so if they are allowed, they can be submitted into evidence without having to have access to your phone. Additionally, voicemails may have to be put on a recorder or downloaded (in addition to keeping voicemail on your phone). Make sure you research how to properly submit documentation like texts, voicemails and recordings for your local jurisdiction.

Documentation Log

Since documenting child abuse will be long term, it will need to be organized and thorough.

Put date and time of entry
Put date, time and location of where child abuse took place (If exact information is unavailable, be as precise as possible and say approximately)
What happened?
Who was involved?
How did you hear about this information?
Did you witness or did others witness?
Was it a statement or behavior that you saw?
If the child told you something about the visit, write down verbatim what the child said. Also, write down if this was a spontaneous statement by the child or was it in response to a question or comment you made.
If you took action after hearing the statement or behavior then document what that was, e.g. After hearing/seeing, you called a therapist, police, doctor etc.

Be sure to document everything, such as:

Statement by child
Statement by others regarding child
What you are witnessing
What others witnessed
Behaviors or problems in school as reported by the school
Therapist/counselor comments
Behaviors or problems in sports or other extra curricular activities
Interactions with social services, police or other agencies

Be sure to keep important documents organized and in one place. Make sure you organize and correlate important documents with your documentation log.

Examples of Documentation

Entry: Wednesday, September 18, 2019

My son told me today that last weekend, while at his dad’s house (Fri Sept 13- Sun Sept 15), that his dad made him watch videos of naked people having sex. He just blurted this out. I asked him how it made him feel and he said funny and weird. I asked if he told his dad that he didn’t want to watch it and he said his dad made him watch it. I called my son’s therapist and told her what he said and made an appointment.

Entry: Thursday, September 19, 2019

My son saw his therapist today and after their appointment the therapist told me that my son proceeded to tell her the same thing he told me. She said she called Social Services to report it.

Entry: Friday, September 20, 2019

(Person’s name) with Child Services came by today to interview me and my son. (I would put as much as you can remember that was said by the social worker and any other pertinent information.)

Once the case worker finishes his/her report be sure to get a copy of it and put it with your files and reference the report as well as the status of the report in your Document Log. The copy of the report will also give you pertinent information about their interview with the other parent and it will tell you who they contacted and interviewed or who they did not contact and interview. You can determine how thorough their investigation was. Unfortunately, some information will be redacted.

Entry: Tuesday, October 15, 2019

Closed case as Unsubstantiated (I would suggest you also call the social worker and find out why it was unsubstantiated, try to get as much information as possible. And then log it here). I will order the final report when it’s available and file it.

Another example:

Entry: Tuesday, September 24, 2019

Last night my daughter wet her bed again. She is 7 years old and has been potty trained for years. I asked her if she had a bad dream and she said she doesn’t remember. I asked her if she feels scared about something and she said she is scared that I’m (her mother) going to die. I asked her why but she wouldn’t tell me.

As you can probably tell, it will be a long and tedious process. Most of this will be used only for your records and building a court case. Most of it will not be used in court but rather for your court case. The mind has a way of forgetting trauma and this information will long be forgotten if you don’t log it. Although writing this information down will be hard to do, it can also be used therapeutically. Think of it as journaling, processing, and then being able to empty it from your thoughts until a time when it is needed.

2. Contact Your Witnesses

Anyone can be a witness – a friend, family member, children, neighbor, emergency room nurse, doctor, a stranger who saw or heard the abuse, law enforcement officer, etc. If your witnesses refuse to come to court and you choose not to force them with a subpoena, you can ask them to write a declaration of the event they witnessed. This is a description of what they witnessed with times and dates. Have them notarize it so you can bring it to court as evidence.

Some witnesses may not come to court unless they are given a subpoena which commands them to appear and testify. Court clerks and self help centers have subpoena forms that you can fill out. The subpoena will have to be signed by the judge before it is served. There may be specific rules in your state regarding how the witness has to be served with the subpoena and even how many days in advance of the hearing s/he must be served. Be sure to ask the clerk or self help center for this information. Depending on the state, you may have several possibilities to use to serve your witness with the subpoena – you may have to get someone older than the age of 18, a process server, sheriff department or by certified mail.

Professionals such as doctors, therapists, etc. will charge you a fee to appear in court for you. Some judges will allow the professionals to appear by phone which decreases the billed time and lowers the fee. This will need to be approved by the court ahead of time. Find out from the clerk or self help center how to get this approved in your county.

If the people you subpoena do not come to the hearing, let the judge know. The judge can penalize them for not showing up and you can ask the judge to postpone the hearing until the subpoenaed people appear.

3. Gather the Evidence

Each state has its own laws about what evidence you can use in court. You may need to get certified copies of the documents or you may only be able to enter information from certain parts of the document. If you are trying to get reports from police, hospitals, doctors, etc., you may have to get a subpoena signed by the judge to get those documents. Your state may require that the documents are sent directly to the courthouse instead of to you. Some jurisdictions may require the doctor or therapist (the author of the documents) to be present in the courtroom to allow the documentation in as evidence. Due to the complex “rules of evidence,” as they are called, it may be hard to figure all of this out on your own – consider having a consultation with an attorney for these kinds of questions.

In most states, evidence for a restraining order trial can include:

Testimony in court (from you or your witnesses);
Medical reports of injuries from the abuse;
Police reports when you or a witness called the police;
Pictures of your injuries (it’s better if they are dated);
Household objects torn or broken by the abuser;
Pictures of your household in disarray after an episode of domestic violence;
Pictures of weapons used by the abuser against you;
Tapes of calls you may have made to 911, which can be subpoenaed;
Certified copies of relevant criminal convictions of the abuser (you may be able to get these through the clerk of criminal court);
A personal diary or calendar in which you documented the abuse as it happened; and
Anything else that might help convince the judge that is allowed under your state’s rules of evidence.

The more evidence you have, the better. However, even if you have no documents or witnesses, your testimony is evidence. Don’t be discouraged from pursuing your case if the “only” evidence you have is your testimony.

4. Best Interest of the Child

Most states make custody determinations based on “the best interest of the child.” Although there is not one definition used by all states, there are similar standards in which the “best interest” is determined. States tend to start with the fundamental importance of the parent-child relationship, seeking to maintain as closely as possible, the parent/child interaction which existed prior to the parents’ changed relationship. Altering this interaction will only be necessitated by the logistics of the changed relationship or as required to protect the child from physical, mental or emotional harm. In addition, the courts are required to balance the ability of each parent to meet the needs of the child or children. Rarely will one factor by itself determine custody. More likely, courts will make a finding on custody based on the totality of all factors.

Best Interest factors:

Financial
Primary caregiver
Stability of the home and lIfestyle of the parents
Child’s relationship with parents/emotional needs
Educational opportunities
Child’s preference
Siblings/extended family
The physical and mental health of each parent
Spousal abuse, child abuse or neglect of the child
Which parent is more likely to facilitate a healthy relationship between the other parent and child

Financial – The courts will want to keep the child’s standard of living as close to when the parents were together or to what the child is accustomed to as much as possible. They will look at where the child will live; will it be in the same house where they were living? Will they be going from a home to a small apartment? Will the child be able to access the same sports and extracurricular activities? Basically, which parent can provide the standard of living in which the child is accustomed to.

Primary Caregiver – If one parent has spent most or more of the time raising and caring for the child and/or predominantly had physical custody of the child then that may be considered at time of custody. For example, if the other parent leaves the home and you raise the child for a period of time without the other parent’s presence in the home, then the court may consider the stability of keeping the child in that same home.

Stability of the home and lifestyle of the parents – If you and the other parent lived in the same house but the other parent was predominantly absent or uninvolved while you were significantly involved in raising the child, the court may want to keep primary custody with you. Stability could also include the safety of the environment where the child will reside. Will one parent be able to provide a safe neighborhood while the other parent cannot provide safe living arrangements or is homeless? The courts will also take into account the parents’ lifestyles. For example, does one parent have frequent parties at his/her house, are there drugs at the house, do they have a new partner who is violent living there? Will the parent be gone a lot (possibly due to work) and leave the child alone with non-family members?

Child’s relationship with parents/emotional needs – The courts may look at the child’s relationship with each of his/her parents. Are they estranged from one of the parents? Are they more bonded with one of the parents? What are the reasons for this? Is there one parent who is more likely to meet the emotional needs of the child?

Educational opportunities – Is one parent more likely to be able to offer the child much better educational opportunities, such as a great school or a school that meets the child’s special needs? For younger children this will include child care so if both parents have to work, greater weight in this factor may be given to the parent who has better child care arrangements.

Child’s preference – A child’s preference to live with one parent may be taken into consideration, depending on the age of the child. The closer the child is to 18 years old, the more weight the court may give to the child’s wishes. And although there is rarely a mandated age that the courts will hear a child’s preference, 12 and older seems to be more likely an age where the court will allow a child to give his/her preference. However, many times the court will not hear the child’s preference. If a child is allowed to express his/her preference, the court will look closely at the reasons why the child prefers to live with the other parent. For example, if the child prefers to live with a parent who is not disciplining the child and who does not set appropriate boundaries for the child, then the court may find that would not be in the child’s best interest to live with that parent.

Siblings/extended family – Courts prefer to keep siblings together whenever possible. If the child has siblings or half-siblings living with one parent, this may affect whether that parent receives custody. In the case of a relocation, the courts may look at extended family as well and whether or not the child will be able to maintain and have relationships with close extended family members like grandparents or half-siblings.

The physical and mental health of the parents – Courts may consider if a parent is able to reasonably care for a child due to a severe physical illness or disability. Evidence that shows a parent who misuses drugs or alcohol can affect custody. Untreated mental illness, personality disorders, or emotional instability and/or poor parenting may affect a custody award.

Spousal abuse, child abuse, neglect – Evidence that one parent has committed domestic violence against the other parent, especially in the presence of the child, can affect custody. Evidence that one parent abused, neglected or abandoned the child can also affect custody.

Which parent is more likely to facilitate a healthy relationship with the other parent and child – Evidence that one parent has significantly interfered with the visitation rights of the other parent may affect custody. While in court, parents will be observed by the court via their testimony, behavior and interactions as to which parent is more likely to foster a relationship with the other parent.

You may think your case is a slam dunk because you have multiple factors in your favor regarding the best interest of the child. Not so fast. First, remember evidence is key. You may know the other parent does drugs, you may know the other parent abuses your child, you may know the other parent is not emotionally bonded with your child and you may know that the child doesn’t want to live with the other parent. None of that is evidence and without evidence, none of that may matter. Or maybe you have evidence but the judge doesn’t allow it or you may have evidence but the judge doesn’t give it considerable weight. The judge may not let your child speak their preference or the judge may not give it weight at all.

All of the aforementioned happens in court everyday. As a matter of fact, the aforementioned seems to be the norm rather than the anomaly. Judges routinely prohibit evidence from being entered into court, many times they prohibit damning evidence against the other parent from being entered. So having many of the best interest factors in your favor or having evidence of abuse does not mean you will have 100% custody or 50% custody or even any custody.

Although the courts supposedly use the premise of the best interest of the child for determination of custody, another more prevalent gauge that is used to determine custody is reunification. Reunification is mainly used in cases where children are taken away by child services and placed in foster care. Reunification is the process to enable parents to get to a position where they can care for their child and therefore be reunited.

The court system has become steeped in the politics of reunification and although our discussion doesn’t pertain to foster care, it is important to understand what the prevalent politics are involving the family court system. The opposite of reunification is to separate or become estranged. How does this play out in a custody battle? Reunification might not be the issue in a custody battle but preventing the separation or estrangement of a parent with their child is the prevailing sentiment within the court system. It’s basically just the other side of the same coin.

We know reunification is a big push within the court system and by extension we know that preventing separation or estrangement of families is also the main focus within the court system and not the best interest of the child. Judges overlook many of the “best interest” factors in order to prevent separation. It’s always a fine line when it comes to presenting your case in court, a fine line between best interest of the child and parents rights, a fine line between protecting your child and allowing the other parent access, a fine line between keeping your child safe and fostering a relationship between your child and the other parent so here are a few tips on what to focus on and how to do that:

Always use as many of the “best interest of the child” factors as you possibly can when presenting your case.
Always use evidence to support “best interest”
When entering your proposed custody agreement, always try to include as much parental/child time with the other parent to the greatest extent possible. Even if that just consists of supervised visitation.
Always foster a healthy relationship with the other parent and child. Minimally, that may only consist of not talking bad about the other parent in front of the child, as well as understanding that regardless of the situation, the child may want some type of relationship with the other parent. This is also very important for your child’s mental health and your future relationship. Even if the other parent deserves all the negative things you have to say and even if they are all true, your child does not want to hear that from you and it’s paramount that your child gets to come to any decisions about the other parent on their own. When it’s time, the child will most likely say all the things you’ve been thinking on their own and when the time comes that your child no longer wants to see the other parent, they will have made that decision on their own and without any influence from you.
Above all else, don’t act hateful or spiteful to the other parent, ever and don’t act that way in front of the child, ever. This could go under the heading of fostering a healthy relationship between the other parent and child by not influencing the child’s feelings toward the other parent. In addition, a hateful and spiteful demeanor toward the other parent will come across in court and the judges despise this drama and it will affect your case.

“Best Interest” codes from each state are located at the end of this training. Please read your state’s code to get a better idea of what they consider best interest. Some of the states refer to a child’s preference and whether or not they can speak with the Judge and at what age.

Possible evidence to support your best interest factors could be:

School records showing how the child is doing under your care;
Your involvement in school activities showing your support;
Declarations written by your children’s teachers, coaches, school counselor, etc. explaining your involvement with the school and your child, your parenting and support of your child, your child’s behavior, attendance, and grades at school, etc.
Medical reports
Counselors reports
Police reports
Declarations from your pastor, youth leaders, or care group leaders who know you and your children and your involvement in your local church;
Financial information showing your ability to provide for your child;
Documentation showing your ex’s ability (or inability) to follow court ordered parenting time schedules, rules (such as no alcohol use prior to parenting time) or any other noncompliance.

5. Record Important Conversations:

Most states have passed the One Party Consent Law for recording

conversations. Check what your state allows. A few states do not allow recording conversations you are a party to and can order sanctions against you. So check out your state before recording. Where it is legal, recording your children, ex, CPS, police, case workers, and doctors visits not only gives you supporting evidence but protects you against false accusations.

One Party Consent Law for Recording Conversations:

If you are personally participating in the conversation, then you will benefit from Michigan’s one-party consent rule. This is because participants cannot eavesdrop on their own conversations. See Sullivan v. Gray, 117 Mich. App. 476 (1982), in which the Michigan Court of Appeals ruled that the eavesdropping statute does not apply to a participant in a private conversation, because eavesdropping is defined as the overhearing or recording of “the private discourse of others.”

Additionally, absent a request that discussions be held ‘off the record,’ it is only reasonable to expect that a conversation may be repeated. Because the participants may expect a conversation to be repeated, a participant may tape-record the participant’s own conversation.

You cannot record a private conversation or eavesdrop on a private conversation, which you are not a party to. A third-party cannot be involved in recording a conversation at your request.

Federal and Michigan state law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. Under a one-party consent law, you or your patient, can record a phone call or conversation so long as you are a party to the conversation. Clearly, this means your patient is allowed to record the conversation between the two of you. This is called a “one-party consent” law.

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.