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Kevin O'Flaherty

Television and movies make child custody cases and child support cases look like knockdown, drag-out battles that bring out the worst in the parents, and sometimes they are. The prospect of not seeing your child as much as you’d like can be quite disconcerting. Ideally, when going through a divorce and determining how parenting responsibilities will be divided both parties will come to an amicable agreement that is in the best interest of the child, sparing both parties from unnecessary grief and pain. But when the two parties disagree the court must ultimately determine what would be in the child’s best interest. During the litigation process, many different types of evidence may be presented, from financial documents and health records to testimony from a bevy of witnesses, even your social media posting could become evidence in a child custody case. Below we’ll cover some of the more common types of evidence presented during a child custody case and relevant factors for the court to consider:

  • The wishes of the child’s parents - It may seem like a no-brainer that each parent would want their kid to have the most time with them, but there are plenty of examples when one parent feels their child shouldn’t be around the other parent at all, or should only be around the other parent in the presence of another guardian, such as a grandparent
  • The mental and physical health of all parties involved - This information may come in the form of health records, interviews with treating physicians, and other testimony. 
  • The wishes of the child - Usually irrelevant of the child’s age, unless the child is an infant and unable to communicate his or her intentions in a meaningful way, the court will consider the wishes of the child when determining custody.
  • Social media - Social media is becoming more and more integrated into our lives in ways we don’t even know and can’t predict. It’s nearly become background noise in the same way we turn on the TV in the morning while making breakfast. Posts on any form of social media from Facebook to “self-deleting” apps such as SnapChat can be included as evidence in a child custody case.
  • History of physical or emotional violence in all parties involved - This one pretty much goes without saying, but a history of violence does not lend itself well to winning a child custody case.
  • Writings - “Writings” covers just about everything from letters, photographs, e-mails, words, pictures, etc. This is where a significant amount of evidence will come from in child custody cases and where a case is made or broken. You might have a photograph of your ex taking part in a negatively viewed behavior during a time that your ex told the court they were with your child. Or perhaps you have a text or e-mail from your spouse stating ill intent towards you or your children, whether true or hyperbole. Writings are also a common area to catch the opposing party in a lie, and under “the penalty of perjury” it would look very bad for the lying party and would call into question the truth of every other argument in support of his or her side. However, in order to have any form of written evidence introduced into the case, it must be authenticated, meaning:
  1. Establish a chain of custody showing who had the evidence and when;
  2. Prove that your evidence actually shows what you say it shows, and;
  3. Prove that your evidence will assist the court in its decision and not be misleading

  • What level of willingness does each parent show in facilitating a close and healthy relationship with the child and the child’s relationship with the other family members
  • Whether either parent is a sex offender and any other history of criminal activity
  • In the case of one or both sides being military parents the military family care plan must be completed and presented in the case

Objections from the opposing party can be made to nearly any piece of evidence. Typically, you may have a feeling if some piece of evidence is objectionable and you would discuss this with your lawyer. He or she would determine the proper objection and that piece of evidence would be considered for removal from the case. Some typical objections include:

  • No personal knowledge - Perhaps your ex-spouse is testifying about an event or another piece of evidence that he or she was not present for or has not seen;
  • Hearsay - Secondhand written or verbal statements (e.g. “His brother said that he always drinks around the kids.”);
  • Improper or no authentication - A piece of evidence, such as a message in a text thread presented without the entirety of the thread. As you could imagine it would be easy to present a single message, take it out of context, and suggest it applies to whatever position you are trying to prove, and;
  • Irrelevant, ambiguous, or misleading - A piece of evidence or a question about a piece of evidence that doesn’t make sense to you, is deliberately meant to mislead or confuse you, or is unduly prejudicial and doesn’t support the facts or main argument trying to be proven.

Evidence is what makes a case and knowing what to include and how to manage objections is an integral part of your lawyers’ job. There can be a lot of back and forth in custody cases and being knowledgeable and prepared with the proper legal help can be the difference between winning or losing a case. For more information on Illinois child custody check out our articles on Illinois Parenting Laws in 2020 and Common Problems With Evidence Presented in Illinois Child Custody Cases.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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