In obtaining “affidavits” the Declarant (person giving the statement) should provide the information indicated below. All affidavits should be double-spaced, typed, signed, and notarized, and should be based on the individual’s first-hand observations and not hearsay.
If preferred, you may also write or have witnesses write affidavits and forward them to me prior to your hearing for review, comments. They will be emailed back and will then need to be printed, signed and notarized.
For your convenience, and that of your witnesses, we have notaries in our office.
1. Their name, relationship if any to the parties, length of time they have known the parties. (I.e., I, Declarant, have been a good friend of Mary for approximately 10 years since we met at work. I have known John since they got married and attended their wedding”. OR “I, Declarant, have been John’s stepmother since marrying his father 3 years ago”.
2. They should also indicate the amount of contact they have with the parties and if a custody dispute, the amount of time they have observed the parties with the children (i.e.,: As their neighbor, I am at John and Mary’s house approximately 3-4 times a week or talk to them outside approximately 3 or 4 days a week for 20-30 minutes at a time”. OR: “ Although I live in Tennessee, we vacation together with our families every July for a week and spend the Christmas holidays together”. OR: “I see John at work every day and his family at the holiday party and company picnic twice a year”.
Please note: the less the person has contact with the parties, the less impact their statements usually have, especially in the custody arena unless they have observed some serious behavior.
3. The party should indicate what they have observed, as opposed to being “conclusory”. In other words, saying John or Mary is a good parent is not what we are looking for. We want the Declarant to provide their observations to the Court so that the Judge reaches the conclusion that John or Mary is a good parent.
“John is active with his children.”
“John coaches his son’s soccer team every fall, and has gone camping with and actively supervised his son’s boyscout troop. I see him in their yard approximately 2 days a week when the weather is nice playing catch.”
“Mary is concerned about her children’s education”.
“Mary began reading to her son prior to his starting kindergarten, teaching him letters, numbers, colors and shapes. I have personally observed her ensuring he does his homework on many occasions when I have stopped by during the week. I have personally observed her son go to Mary, not John, when he has a question about his homework”
“John teaches his children responsibility”
“I have observed John teach his children responsibility by asking them if they have finished their homework and requiring them to do so before they begin playing their video games. He has also gently reminded them about feeding their dog and changing the hamster’s cage”.
4. In custody cases: Other important matters that should be brought out and developed by persons with knowledge: which parent is more involved on a day to day basis with getting the child up, getting the child ready for school, transporting child to activities and school and doctor appointments, attending PTA meetings; enrolling, attending and cultivating the child’s activities (sports, musical, religious, social clubs); choosing, setting and taking the child to doctor appointment s for regular check ups and for sickness or illness; if the child has any specific medical problem, which parent has the most knowledge of the matter and knowledge of how to care for the problem (i.e., breathing machines, feeding tubes, insulin shots); does either parent have any special gifts or knowledge that makes them the better parent? Does either parent have any specific defects or problems that make them the lesser choice (i.e., criminal record, drug use, alcohol abuse, mental illness, suicide attempts, anger problems directed to the child or parent in the presence of the child), lack of patience with the child, cursing around or at the child, or belittling the child (you’re stupid, you don’t know anything, you’re fat, etc.”
Also, since separating or in anticipation thereof, has either party acted in such a manner which is not in the child’s best interests, i.e., pulling the child out of school early, putting the child in the middle of verbal or physical altercations, cutting of utilities or other financial support for the child, exposing the child to immoral activity.
5. Regarding fault based matters in divorces: the 3 fault grounds are adultery, physical abuse and habitual drug use or drunkeness
If the person does not have first-hand observations of any of the above, then most likely they know what they know from hearsay. Hearsay is not allowed in affidavits. However, if the at-fault party has admitted to any of the fault grounds, that is an “admission against interest,” which is admissible. These can be used also in the custody-dispute cases, i.e., if a parent has admitted that they feel they are not patient with the children, that they are not a good parent, or the like.
Adultery: Obviously, most witnesses are not going to have personally observed the at-fault party having sexual relations. The 2 elements of proving adultery are:
1. Likelihood or propensity of the party to commit adultery: them being seen out in public, openly affectionate (hugging, kissing, holding hands). Other indicia: copies of emails, love letters, receipts for flowers or jewelry or intimate products not used in the marriage, cell phone bills reflecting high amounts of contact and at unusual hours (late at night when not at work)
- Opportunity: spending the night, by themselves, or at least several hours alone in private
Habitual drunkenness: How much, how often, DUIs, missing work, medical or other issues relating to alcohol use.
Physical Abuse: must be enough to put the person in reasonable fear of life or limb.
6. Address financial concerns and property issues, such as use and possession of home, vehicle(s).