Opinions in Child Custody Cases, Part 1 – “Grandma’s Two Cents”
Listen, a HUUUGE part of being effective in your Child Custody case is knowing the difference between facts and opinions. I explain how focusing on the facts, posted on Foxtrot’s Youtube page, can empower you, individually, and allow you more control over your case.
Here, though, I want to talk about the kinds of opinions that might actually end up being relevant to your case as opposed to the typical chatter that distracts you from things you can be doing for your family and gets you off your game. The opinions highlighted here are opinions that the Judge might listen to and your lawyer needs to be prepared to address.
- Lay Opinions
The term “lay” means “not trained in a certain profession.” It’s the difference between your analysis of a football game you just watched and Nick Saban’s analysis of the same game. You have a “lay opinion.” Coach Saban has expert opinion, a type of opinion which we’ll address in a separate post.
When it comes to Child Custody, every stakeholder is going to have an opinion on what’s best for the children. Most of those opinions are the ones I caution you about here, but it is likely that when you get to your hearing a stakeholder is going to try to throw in his or her “two cents” while on the stand and it will be important to distinguish between a lay opinion the Court can and should consider and one the Court should exclude from consideration.
The key will be whether the opinion of a layperson is (a) based on the witness’ perception and (b) is helpful to a clearer understanding of the testimony or determination of a material fact. Rule 701, Ala. R. Evid.
*Example – Let’s say Grandma is testifying. Grandma knows “through the grapevine” that Dad has missed a couple of drug tests and opposing counsel asks Grandma if she thinks Dad is a good parent. For our purposes, the Court should not consider her opinion because her opinion is not based on her individual perception and not helpful to the Judge. Any Judge in a Child Custody case is perfectly capable of drawing his or her own conclusions about missing drug tests, assuming evidence of those missed tests was properly admitted elsewhere during the hearing.
** Better Example – Let’s say Grandma has recently visited Dad’s home. She testifies that the kitchen was dirty. Counsel can probably ask “how dirty?” and the Court will consider her answer to this question as an admissible lay opinion. When Grandma answers “extremely dirty” that might not mean the same thing it would mean to you or me or to Coach Saban, but it is (a) based on Grandma’s perceptions and (b) somewhat helpful to understanding her testimony.
In the latter example, Dad’s attorney can use cross-examination to probe into what specifically makes something “extremely” dirty and Grandma’s answers to such questions should clarify the weight the Judge should give the evidence. If Grandma can talk about the sour milk smelling up the trash can it will carry more weight than an empty soda can left on the kitchen counter.
In the former example, Grandma’s opinion about whether Dad is a good parent should be excluded both from the evidence at trial and Dad’s concern, generally. Not only is it a question about the ultimate issue in a case, which we’ll discuss elsewhere, it is the kind of dramatic commentary that makes dealing with Child Custody cases so difficult and should be ignored and avoided to the extent possible.
Opinions among everyone involved in a Child Custody case can be hurtful and can confuse the issues. Don’t get too caught up in what someone thinks about something because it’s either inadmissible at trial or nothing to be overly concerned about.
If you want to learn more about this subject and how it might apply to your case, schedule a consultation with a Child Custody lawyer and start being more effective immediately.
We’ll learn more about other kinds of opinions on cases in the near future. Be well. ~SW