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Choosing the Wrong Witness

JACOBS V. DUDLEY, 2021-NCCOA-571 (19 October 2021).

Child custody can be hotly contested. Often people will have third parties (i.e., not the parents or guardians of the child) involved in some custody disputes. These people include teachers, doctors, therapists, and extended family members. Such individuals are often asked to come to court to expound on the parenting abilities of the parties, the child’s performance in school, and perhaps even the psychological state of the child. Choosing a good witness to introduce facts to the case is important. Below, we see an instance where one bad witness backfired.

  • Facts: Mother and Father were involved in a custody action. They were operating under a temporary custody order. They went back to court for a hearing on permanent custody in 2020. At trial, Mother asked the child’s daycare worker to testify as to some of the events that she had witnessed as the child’s daycare provider. This included her testimony about the child’s appearance when brought to daycare by Father. She also testified to the food that Father provided for the child during daycare, that she had concerns about the food. The daycare worker also testified about the child’s behavior and her concerns with regard to problematic behavior. Apparently, this daycare worker communicated these concerns to Mother at some point. However, neither she nor Mother ever communicated these to concerns to Father—the father who brought the child to the daycare. The court specifically found that this daycare worker’s testimony held little weight given her lack of communication with Father about the issues that concerned her. It should be noted that these concerns spanned an eight-month period. “The Court found [the worker] negated her credibility with the Court by her failure to bring anything to Father’s attention so that they could have been addressed.” The Court did not condone the fact that neither the daycare nor Mother communicated their concerns to Father so that he could address the issues. The Court made findings about this witness. Ultimately, the case was reversed for issues with sufficiency and language in the Order. But it is clear to see that the wrong choice in witness was likely detrimental to Mother’s case.


  • Lessons and Observations:

Do not try to conjure some “gotcha” moment in court. I cannot say that it was the plan to wait and have this witness divulge her concerns at trial to surprise Father. But if it was the plan, suffice it to say that the plan backfired in the worst way. If you or a third party has concerns about the child while the child is in the care of the other party, those concerns should be expressed to all parties. Otherwise, how can anyone do anything to address the concerns? This can just show bad communication and coparenting abilities, and at worst it shows spiteful behavior not becoming of a responsible parent looking out for the welfare of the child.