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Example of Cross-Examination Gone Wrong in Custody Court

Uncategorized Apr 13, 2017

This is my interpretation and a humorous example of an actual cross-examination I did recently in a custody hearing. It's a great example of how NOT to answer cross-exam questions.

Cross examination is that part of the custody trial after direct examination, where either you or your witness have told your ‘side of the story’. Your spouse’s attorney will now have the opportunity to ask you or your witness questions. This is called cross-examination.

If the other attorney or other party (if they are representing themselves) are skilled in cross-examination, he or she will use questions to try to box you into yes or no answers. That is just the nature of cross-examination and it is nothing to be afraid of.

When you feel the pressure of the attorney boxing you in for a yes or no answer, and even if you feel like a yes or no answer does not give the court the whole picture or you want to explain further, you still need to go ahead and follow the judge’s order and answer yes or no. If not, the judge will order you to do so.

I am going to give you a great example of a cross-examination and some sample questions.

So just go with the flow because after cross you will have an opportunity to help yourself and I will explain that after the example of the cross-examination of the cross examination I recently experience in the family law courtroom.

Before we go into the re-enactment I want to give you the background of the custody case.

In this custody case the judge had recently ordered that my client who was the mother could relocate her 3 children to Utah. She had met someone and became engaged and they were planning to get married. After a trial the judge determined that she could move with her children to Utah.

So in this hearing the only issue in debate was how much parenting time the father was going to get now that the mother was going to relocate out of state. The goal for everyone because it was in the best of the children was that the father would receive regular parenting time in spite of the fact that the mother would have primary care of the children in Utah while the father remained in Arizona.

So here is the re-enactment of the custody trial where the issue was parenting time for the father:

Attorney for the Mother : “So, Mr. Miller, do you agree with me that you want to see your children on a regular basis?”

Mr. Miller (the father) : uhhhhhhhh…yea….uh-huh yea.

Child Custody Attorney: And do you agree with me that if you are seeing them once a month that you will be seeing them on a regular basis?

Mr. Miller: mmmmmmmmmmmmm……no?

Attorney: So you don’t agree with me that if you see your children once per month that you WON’T be seeing them on a regular basis?

Mr. Miller: (father shifting nervously in his seat) Well……uhhhhhhh…….it kinda depends.

Attorney: So, Mr. Miller, let me get this straight, do you mean to tell me that if you see your children one time per month, you will not be seeing them on a regular basis?

Mr. Miller: Ummmmmmmmmm….could you repeat the question?

Attorney: Ok, I want you to pretend with me for a minute. Imagine that you are seeing your children one time per month. Can you do that?

Mr. Miller: Yea..yea…yea…I can imagine seeing them once a month…yea…yea…

Attorney: So now that you are imagining that you are seeing them once a month, do you agree with me that you are going to be seeing them regularly? Yes or No?

Mr. Miller: Well only if I get credit for 108 days a year in the child support calculator.

So, the cross examination went on and on like this and it became unbearable for me and the judge and even his attorney because at the end of the conversation, the father’s attorney was instructing him. “Just answer the question”

So my whole point is that during cross-examination, you are going to get boxed in, you are not going to get to explain your answers. That is just the way it is. But the good news is, AFTER cross-examination there is something called rehabilitation or re-direct. And on re-direct, if you have an attorney, that attorney is going to get to ask you questions to give you the opportunity to explain the answers that you did not get to answer in cross. And if you don’t have an attorney then you are still going to get the chance to explain the things that you wanted to explain.

So, the lesson is, don’t worry if you feel you are getting ripped apart on cross, or you feel like you are not getting the full opportunity to expound on your answer because you are going to get the chance to fix it. Don’t be evasive, don’t fail to make eye contact, don’t roll your eyes, don’t mumble, Just ANSWER THE QUESTION.