All lawsuits come down to proof. A litigant who is able to substantiate his position because he's backed it up with concrete, tangible evidence has a much better chance of success than one who doesn't. When something as important as your child's welfare is at stake, you’ll want to begin documenting your position early on, as soon as you suspect you and your ex might end up in a courtroom.
Keeping a comprehensive diary of your child’s time with you can be an important tool. It not only shows a judge her existing routine, but it will jog your memory regarding specific incidents or witnesses that you might want to cultivate later. A diary will establish how much time she spends with you and how you interact with her. Include mundane details, because you probably won’t remember them later. Detail good times with her, and detail any bad incidents, such as if your ex tries to interfere with parenting time. Judges prefer the parent who actively tries to facilitate the child's relationship with her other parent.
Audio and Visual Evidence
Video your home, your child’s bedroom and your daily routines with her. Many families capture vacation time, sporting events and holidays on video, but you’ll want to include more than this. Create a visual diary of your child’s life with you and the home you've created for her. If you use a video medium that records sound, try not to speak too much. You want to avoid any impression that you're coaching your child to appear happy. Include any bad moments as well, such as if your child frequently comes home crying or dirty after visits with her other parent, or if she visibly doesn’t want to leave you when it’s time for her to go. However, you should consult with a lawyer if you include your ex in any video or audio recording. Some state laws prohibit doing this, with or without her knowledge.
As you draw closer to your trial date, go back over your diary. Get in contact with friends, neighbors, family members, teachers, coaches or physicians who may have witnessed either your consistent care of your child or negative instances of interaction with her other parent. Find out if they’d be willing to testify on your behalf, or at the very least, give you a written and sworn statement regarding what they've observed.
A court will also look into the moral character of both you and your ex when deciding custody. If you know of any issue that might carry some weight, document it. If your ex has a drinking problem and has a DUI on her record, get the police reports. If she ever failed to show up for a parent-teacher conference, get a record of it. If she’s a workaholic and your child would spend a great deal of time in daycare if a judge doesn't award you custody, try to get some kind of written proof of her work schedule. Your diary might help in this respect as well, if she often cancels parenting time because she can’t get away from work.