'Preserving the Record' in Custody Court & Why You Need To In Case You Appeal in the Future

Aug 03, 2017

As you head into trial for your custody hearing not only should you be worried about what it is that you're talking to your trial judge about (because your trial judge is the one who's going to be making decisions about your custody case. And also decisions about your future, your finances and your future with your children.

However you also need to be worried and prepared about a courts involvement in your custody case down the road. Hopefully in your custody case you are going to get a result that either you're really happy with or that you ca at least live with.

But if you find yourself getting a result after your custody trial with your trial judge and you're in a situation that you're not happy with. Or it's not one that you can live with or not in the best interest of your children. You think that your judge abused his or her discretion or the result was just plain wrong, then you may need to appeal those results.

The appeals court is going to look at many things but one of the things that the appeals court is going to look at are the objections you've made during your custody hearing. And when you make objections during your trial you are 'making a record' or you're preserving the record.

That way if you're objecting when you go to the appeals court you can say to the court, I want you to look at the mistakes the trial judge made. And the mistakes are when i ask that the trial judge to do X, Y, Z and the trial judge didn't. Or when the other party asked for the trial judge to do something and the trial judge did.

But if the court of appeals does not have your objection on record, meaning you saying in the courtroom I object on these grounds or you're filing some sort of motion objecting to evidence and doing this before the trial. Then the appeals court is not going to have anything to do. They're not going to have anything to look at and they're not going to know what objections that you are making to the judge's decision.

In legal terms that means that you have waived your objections and you've not done a very good job of preserving the record.

So in a nutshell, when you present your case at trial you need to preserve the record in case you need to go to court in the future through appeals or if you have a higher court look at the record. This means objecting when you think the other side is trying to get evidence or witnesses in when they shouldn’t be let in.

And stating to the judge what your evidence would show if the judge would let it in if the judge has made a decision not to let that evidence in. It also means is if it’s appropriate in your jurisdiction to file a motion ahead of trial to have the judge rule on contested issues or contested evidence. This is called in the United States “Filing a Motion In Limine"

So preserve your record. I hope you don’t have to go to an appeals court to look at your case once the trial judge makes a decision. But if you’ve preserved your record this will increase your chances of success.


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