Testifying in Family Court? 5 Things NOT to Say

Posted by: Shel 17 Comments

Testimony in Family Law CourtThere are whole books on testifying in court. There are numerous articles about what to say, what to wear, and how to behave. But there are also things that should NOT be said during testimony – especially in Family Court. Following are my top five things not to say in Family Court.

1. “To tell you the truth.” Or ‘to be honest with you.’ Or ‘frankly.’ Or any other like statement. You are expected to tell the truth, be honest, and be frank. To start a sentence out by announcing you intend to do so makes one wonder about your other other statements.

2. “My children.” It’s a common enough reference when you are speaking about your children to a third party. However, if you are testifying in a custody matter – especially if you are seeking custody and asking that the other parent have less physical time – it sounds dismissive of the other parent. Better phrasing is ‘our children’ or actual use of the children’s names.

3.” I allow.”  As in: “I allow him to see the children each Tuesday.” or “I let her pick up the kids at 7:00.” Not much red-flags the Family Court Judge to control issues as much as this type of statement. Neither parent – at least in divorce cases – has more legal right to the children or control of their comings and goings than the other until (and unless) a judge rules that one does. If one parent arbitrarily appoints themself in charge, especially if they wield their control like a weapon, it may very well leave the judge thinking the other parent would be the more reasonable parent to appoint as primary custodian.

4. Anything sarcastic. Whether you’re testifying in a pre-trial deposition* or in court, your words are being recorded in writing. Sarcasm doesn’t read well. The attorney asks you if you beat your kids. You sarcastically answer: “Yeah – I beat my kids every day whether they need it or not.” Cute. Everybody in the room hears your sneering tone and knows you mean the opposite. Not so for the reader of the appeal or deposition transcript. In black and white it appears that you have admitted, under oath, that you beat your kids daily. Not so cute.

5. Tone versus words. Don’t use a tone of voice that proclaims you’re a jerk. Does this seem obvious? During the stress of a trial, when it is your turn to testify and the attorney is badgering you or twisting around your statements, it is very easy to get caught up in a hostile moment. Very easy to respond in the same mean-spirited tone that the attorney is using toward you. The better response is to let the attorney continue to look like a bully and you keep your tone respectful while you disagree. Resist the temptation to be combative and use a tone that is argumentative. The judge probably already knows that attorney and his or her regular behavior, but he doesn’t know you. Taking the high road (after a deep breath or two if necessary!) will serve you well.

(*A deposition is testimony of a witness taken under oath prior to the trial for the purposes of discovering information relevant to the particular legal suit pending.)

If you have additional suggestions of what NOT to say during testimony in Family Court, please share them in the comment section below.

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  • Daisha

    -Don’t cry or show emotion. Don’t make faces, even if you don’t agree with what is being said. This is usually perceived in a negative way. Stay calm. Keep a professional demeanor. Keep your face neutral.
    -If you invite a friend or family member to attend the hearing for support, be sure these people can stay calm, quiet and will not obstruct the courtroom. It’s ok to take notes.
    -Remember most courtrooms are equipped with audio recording equiptment that can detect conversations. So keep outside conversations to a minimum. Be mindful of what you say.
    -Don’t talk to your child about details of the case, talk about allegations or tell your side of the story to your child. Keep your child out of the conflict, and don’t force them to chose sides. Courts perceive this type of behavior in a negative light, and it may damage your case (and also hurt your child).
    -Be careful what you post on social media; assume your ex or the court is reading before you post even if you use privacy filters.
    -Don’t confide, go in details or overshare with GALs and court professionals. Stick to the facts of the case. Disclosing too much information can hurt your case.

  • Nicola

    How many characters can I fit in a comment – I would like someone to proof read my statement before I send it in to be filed with court before my hearing, this case has been on going for 5 years now with an abusive father being let off each time he over chastises our child.

  • Natine

    Wise advice, Shel. 😉

  • This is an excellent post, Shel! I’ve already sent the link to a really good friend who I hope will read this again and again until it makes sense. Especially points # 1 and # 4. When she is nervous, upset, angry, or trying to impress, she emphasizes almost everything with “honestly” or “to tell the truth,” and when she’s irritated or trying to impress, she is the master of sarcasm. While that entertains friends at a get-together, we’ve all tried to talk to her about how it will come across in her testimony. I think she’ll believe you!

    • Shel Harrington

      Thanks for passing it on, Marylin – I hope it helps your friend. Sarcasm comes easily to me, too – and, as you say, while entertaining at times one has to remember to shift gears in the courtroom venue.

  • My husband subjects me to People’s Court and Judge Judy late at night. I try to fall asleep, but it’s hard when you want to see the face that goes with the ridiculous statement just uttered on national television. So I see the counterproductive way people can act in front of a judge ;).

    • Shel Harrington

      That cracked me up – good luck trying to sleep when that stomping People’s Court music is on let alone the inane testimony!

  • better yet mediate before and don’t go to court to fight it out.

    • Shel Harrington

      I agree, Lin. It’s always better to work things out if possible – the judge doesn’t know the family dynamic or the children like the parents do!

  • Great advice, Shel! In all areas of our life, we can never go wrong with taking the high road.

  • Gina Kishur

    Great advice whether in court or not. All five apply to any relationship, and especially in a divorce situation when parents need to be good role models for their children.

  • Ashley

    What about, “Your Honor, we only need one additional shoe per month!” heehee! Great advice! You’re so good at what you do!!!

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