The Write Stuff
By Brian T. Hermanson
The trial of a family law case has always been an example of “he
said, she said.” It is amazing how different people see the same facts
in different ways. I have been involved in cases in which both parties have
testified to the court that the child lives with them almost every day.
Obviously, both parties cannot be telling the truth. I have seen one party
say that they have great contact with the child when the other party says
that the opposite is true. What a dilemma for the trial judge and a problem
for the lawyer wanting to prove his client’s case.
To help resolve this problem, I have told my clients at the first interview
that they need to immediately write down everything that happens regarding
the other party and the child. I suggest that they get one of those free
calendars given out by insurance companies and write down when the other
parent calls, when child support is paid, when visitation is held, and everything
else that occurs (or doesn’t occur). (Marketing tip: Think about giving
your clients calendars with your name on it so they will think of you when
future changes happen.) I tell my clients to do this not only while this
case is pending, but until the child is no longer receiving benefit from
the orders of the court.
Does having this record prove that the written notations are true? No.
But I would suggest the court is going to be more likely to believe those
notations than someone trying to remember something that may have happened
weeks or months before trial. It just adds a bit of credibility to the claims
of your client. That increased credibility might be all you need to prevail.
I have been recommending this to my clients for years. I am beginning to
see cases now where clients come back to my office on motions to
modify, and the first thing they show me are their calendars. All of a sudden
I have all the history that I will need to prove our case. I then use those
dates so that I can prepare graphs and other demonstrative exhibits
showing all the facts that will support my client’s position.
Now when the other side tries to put on evidence that his client has exercised
every visitation, I can come back with evidence that those visitations either
did not occur or that the other party would always bring the child back
early and unfed. Now we have a leg up on the other side that may be enough
to convince the judge that the other side is not telling it like it is.
This same type of thinking should be used whenever your client has to deal
with the other parent. When your client is paying child support, get a receipt.
Do it whether the client is paying cash or by check. It will show the day
you put the check in the hands of the other party. If you are dealing in
cash, it will prove to the court that you are complying with the orders
of the court. There have been some real problems when a person has paid
in cash and no receipts were obtained. What happens if the other party denies
that the payments were made? What if the other party, through death or illness,
is not available to acknowledge what payments were made?
Bottom line: none of our clients should be paying in cash. Have the client
use money orders so that a money trail is there. And as I said
above, get a receipt to show when the money order was delivered
to the other parent. If they live out of town, do a certified letter or
deposit it to their account yourself and keep the receipts.
And please, make sure your client preserves all of this proof. To get a
receipt and then lose it does no one any good, except maybe the other side.
Brian T. Hermanson is general practitioner at the Hermanson Law Office in Ponca City, Oklahoma. He can be reached at bhermanson@oklawhoma.com.
© Copyright 2008, American Bar Association.
