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Evidence In Custody and Divorce Trials

Because many divorce cases are actually two cases in one, since the first determines child custody and the second determines property division, there are two standards of proof in these cases as well.

Each party must establish custody and visitation facts by a preponderance of the evidence, or “more likely than not.” If two stacks of holiday wrapping paper are side by side and someone moves one sheet of paper from the left to the right, the stack on the right is taller than the one on the right, and to establish facts by a preponderance of the evidence, it only takes one sheet of paper. Naturally, the jury must also determine the evidence’s reliability.

California is a community property state, so unless the property was acquired before the marriage or by gift, there is a strong presumption that it must be equally divided between the parties. To overcome this presumption, the challenging party must present clear and convincing evidence, so there must be a high probability that the fact is true. This standard is between preponderance of the evidence and beyond a reasonable doubt, the high standard in criminal cases.

Understanding the burden of proof is only the first step, and convincing the jury of certain facts is the second, and much bigger, step.

Initial Custody Evidence

In contested matters, most judges hold a temporary hearing  about two weeks into the case. So, there is almost no time to interview witnesses and assemble documentary evidence. However, most couples are separated for weeks or months before either spouse files for divorce. This period is an opportunity for spouses to not only gather “dirt” on the other spouse, but also establish themselves as effective co-parents who put their children first.

Some people go about gathering “dirt” the wrong way. No one, the judge included, wants to hear about dirty dishes in the sink and flirtatious behavior at office parties. Such matters are clearly not germane to the best interests of the children. Moreover, the party who brings up these disputes usually looks petty and more interested in disparaging the other parent than developing a workable and fair custody and visitation order. Instead, focus on items that involve the children. For example, late or lax bedtimes may seem petty, but many experts agree that sleepy children do poorly in school.

A parent’s own behavior is the other part of this equation. Everyone has skeletons in the closet, and now is not time to hide them, because the other spouse probably knows and may have no qualms about bringing it up in court. If a lawyer knows about prior child services investigations upfront, the lawyer can deal with it. Moreover, if a parent has not been diligent to attend school activities and soccer games, a period of separation is an excellent time to start.

Essentially, the status quo determines the outcome in temporary hearings, at least in most cases. If the routine works reasonably well, even if there are mildly serious issues, most judges will keep it in force.

Later Custody Evidence

Social services investigations are part of almost every contested custody cases, except ones that settle early through mediations, because either the judge orders one or a party asks for one. Each county does things a slightly different way, but in most instances, the county child services agency handles these investigations and the parties divide the cost proportionally. Private social studies are usually much more expensive, but if custody is a high priority, the investment is normally worthwhile.

The social services agent usually interviews the children, if they are old enough, both parents, and third parties with regular contact with either the children or parents, such as teachers and coaches. Additionally, most social workers look at medical records, school records, and other such documents. If any of this evidence is either highly favorable or highly unfavorable, the party should be ready to either parade it in front of the judge or somehow discredit it.

Most judges see social services investigations as practically dispositive, along with attorney or guardian ad litem reports.

Property Division Evidence

A party’s own testimony about property ownership is usually not clear and convincing evidence, especially if the other spouse has a reasonably credible alternative version. So, in addition to written contracts and agreements, the party challenging property classification normally needs to partner with an accountant or other financial professional.

This professional can also determine value, because most items do not have objective pricetags. There may be mixed classification issues as well. For example, business goodwill from a name like Burger King is normally community property, but if the business goodwill is particular to a spouse (Brenda’s Beauty Shop), such goodwill is typically separate property.

In longer marriages, commingling is often an issue. If Husband finishes paying off a car he owned before the marriage with paycheck funds (which are community property), Wife is usually entitled to either the car or partial reimbursement.


More resources on divorce:


Top three tips for ending a marriage well - Family Law Attorney, Laura Wasser


Single parent dating advice - Actor + producer, Ricki Lake


Setting limits with kids in a divorce - Associate Professor, David Geffen School of Medicine at UCLA, Dr. Robin Berman

Hossein Berenji's picture
Family Law Attorney

Hossein Berenji, owner of Berenji & Associates, is a seasoned divorce lawyer with a practice focused on complex, high net worth divorces. His commitment to providing aggressive, high-quality representation has led to favorable outcomes for hundreds of clients, and consistent multi-million dollar property settlements, alimony, and child support judgments throughout Los Angeles County.