Unlike television or the movies, American divorce trials aren’t replete with surprise witnesses and “gotcha” moments. That’s because every time there’s going to be a divorce trial, the judge will issue a scheduling order that lays out deadlines to file certain kinds of motions and, most importantly, sets the ground rules for discovery.
Through the divorce discovery process, both sides have to share and exchange information with each other. Most divorces involve at least some emotionally-charged issues, but a divorce with children—which may include an intense child custody battle—will probably require the disclosure of sensitive information that bears on who can best care for the parties’ children.
What is discovery in a divorce?
Specific legal processes for divorce can vary from state to state, but in general, divorce discovery will include:
- Requests for Production of Documents: Either or both sides send the other a written demand to produce documents from a written list. The documents have to be relevant to the case.
- Interrogatories: These are written questions sent to the other side, which has to answer them in writing, under oath.
- Requests for Admissions: A list of questions sent from one side to the other; the opposing side is asked to answer them under oath, and certain answers will be deemed “admissions” as to certain issues in the case.
- Requests for Releases or Information: One side asks the other to sign releases so that the requesting side can access certain information that would otherwise be protected, like bank or medical records.
- Depositions: A party appears for questioning on the record, in the presence of a court reporter.
What kind of information can be discovered when child custody is an issue in your divorce?
The specific kinds of information you can get in a child custody case will differ from state to state. For example, a parent suffering from acute mental illness—which is probative of the parent’s ability to care for the children—may be asked to produce medical records documenting the illness or to submit to an independent medical examination. Courts in some states might deem that too intrusive, while others might find that it's highly relevant, important information.
The best thing for you and your attorney to do is to look at the kinds of “best interest factors” other courts have used, and then use them as your model for the kinds of information you’ll request through discovery. At a bare minimum, you should try to get:
- report cards
- documentation about extracurricular activities
- the children's medical records
- photographs, and
- copies of important documents, such as birth certificates and Social Security cards.
If you’re representing yourself in a child custody case, be sure to take a look at this list of model discovery demands and responses produced by the American Bar Association.
Are there any alternatives in child custody cases?
Discovery can get pretty ugly sometimes, with attorneys arguing over what’s relevant and what should remain confidential. Sometimes lawyers will even go to court to argue whether someone’s taking too long to answer a discovery request and ask for sanctions (a financial penalty).
To avoid some of this ugliness, it can be in everyone’s best interests to ask the court to appoint an expert to represent or report on the child’s well-being. In fact, judges will often do this of their own volition.
Depending on where you live, this court-appointed expert can take many forms. A "guardian ad litem" is appointed to represent children and their best interests. By contrast, a custody evaluator is appointed to assess the existing situation and produce a report about what custody arrangement would be best for the kids. The difference between the two is simply that the guardian is an independent entity and a party in court who has the power to represent the children. The custody evaluator merely investigates the situation.
The great advantage of having a guardian and/or a custody evaluator on the case is that both will visit with the children, their parents, family members, and other important people in the kids’ lives, observe the home environments, gather medical and educational information, and produce a report with a recommendation about where the children should live. Each parent pays a fair share of the costs associated with this service. In exchange:
- The parents are able to avoid the tremendous emotional trauma of calling children to testify, because they’ve already given their feelings and thoughts to the experts.
- The experts will give a copy of their report to each parent.
- The parents and their attorneys will be kept abreast of what the experts are doing and with whom they’re speaking.
- The attorneys will be able to call the experts to the stand and question them, if need be.
- The parents and their attorneys have an avenue to obtain information relevant to their custody fight without having to go through time-consuming, expensive discovery.