How to write an affidavit in a child custody case?
January 7, 2019 10:25 PM   Subscribe

I have been asked to write an affidavit affirming that I have witnessed a friend to be a good parent. Have you done this? What did you include? It needs to be notarized - what does that mean given that I'm not literally composing it in front of the notary?

I cannot give identifying details here, but rest assured that I have witnessed and am confident in my friend's parenting skills and that this custody case is a malicious one begun by a deadbeat ex who is neither capable of or interested in actually parenting the child.

I am happy to write this affidavit, but I am uncertain how.

- what details are good to include?
- how specific do I need to be? I don't really remember which dates I had dinner with them or visited their home
- should I talk about witnessing the deadbeat nature of the ex, which I have?
- how much does it matter that I've only seen them a few times in the past couple of years due to schedule conflicts? Each time I've witnessed active and successful parenting, but will the judge think it's all a front?
-how do I get it notarized? I know where there are notaries, but I've only had a signature notarized in the past

My friend was blindsided by this and is scrambling to access legal aid right now, so my friend doesn't really have any thoughts on this except that it seems likely that it will be needed.

Any additional advice much appreciated - we are all simply reeling due to a variety of terrible and dangerous aspects to the situation.
posted by anonymous to Law & Government (7 answers total) 1 user marked this as a favorite
Which state are you in? Check your local library for NOLO Press books, or their legal information database, for custody. They usually have sample forms.

I found one that has a section on Declarations: CHAPTER 6: Dealing With the Court: Paperwork and Court Hearings (your library must have access to Ebsco to access this) from Nolo's Essential Guide to Child Custody & Support. Oct2017, p145-173. 29p.
posted by amapolaroja at 11:01 PM on January 7 [1 favorite]

Your signature attesting to the truth of your statement is what's being notarized. You bring in the document, provide identification to the notary, and then sign it as they witness (and then stamp it).
posted by praemunire at 11:12 PM on January 7 [10 favorites]

I'm a lawyer who drafts affidavits on a regular basis. I am probably not licensed to practice law where you live, and I don't know enough about your situation to give you legal advice. You're not my client, nor is your friend, and it's unclear to me from reading your question whether an affidavit will actually be needed or helpful. With that said, I can offer some information about affidavits generally.

In most jurisdictions, an affidavit consists of factual statements bookended with something like, "The following facts are based on my personal knowledge. [State the relevant facts.] I affirm under the pains and penalties of perjury that the foregoing facts are truthful to the best of my knowledge." It's often exactly that easy and simple to write an affidavit: just use those magic words, write what you know, and you've got an affidavit. Some jurisdictions also require that it be notarized. (See below.) Affidavits are usually presented in numbered bullet points, but there's usually no requirement that they be. A simple letter can be an affidavit if it contains the magic words.

Give facts, not characterizations. An affidavit is a tool to introduce evidence. Some examples? "Joan is a good parent" is a characterization and not helpful. "Joan and I work together at Axis Chemicals," or "I have spent approximately five afternoons with Joan in the past year, witnessing her interact with her child," or "On March 23, I sat with Joan while she helped her child with homework"...these are facts, and these are helpful. On the other side, "Bill is a deadbeat" is an opinion and not helpful. "Bill told me that he planned to file for custody to harass Joan"...this is a fact, and helpful. Think Dragnet. "Just the facts, ma'am."

Be as specific as possible. If you remember that something happened in November 2018 but not the date, that's fine. If you remember that something happened in early 2018 but not the date, that's fine, too. Don't say the car was red if you don't remember whether it was red. Just give what you have.

In most jurisdictions, "notarization" is a misused term. Notaries can perform various acts. An acknowledgment, a signature witnessing, and a jurat are three different things, and it's not helpful to lump them all together under the term "notarization" as if they were equivalent. Unfortunately most notaries don't even know the difference. In most instances, a jurat is the most appropriate notarial act for an affidavit: you identify yourself to the notary, swear or affirm the document's truthfulness, then sign in the notary's presence. You can find model jurat language via Google. Make your search specific to your state, because some states have specific language prescribed by statute.
posted by cribcage at 12:23 AM on January 8 [30 favorites]

When your friend gets a lawyer, they should be able to provide more guidance. Apparently the letters don’t always have much weight (it was explained to me that everyone’s friends say nice things about them) but I’m sure it varies. I hope your friend gets through this OK- how stressful!
posted by bighappyhairydog at 12:23 AM on January 8 [1 favorite]

You and/or your friend can contact a hotline for support with what you describe as the dangerous aspects to the situation, as well as the stress of a pending custody case against an abuser. These organizations may also be able to assist with finding a legal aid attorney for your friend.

As a general matter, child custody cases are guided by a law referred to as "the best interest of the child," but the specific factors may vary by jurisdiction. However, the best interest law in your state can provide an overview of what the family court generally considers when making a custody determination, which may be helpful when deciding what to focus on in your affidavit.

The website offers a variety of resources, including legal information for each state and information about preparing for court.

Also, if you google the name of your state and "law help," it should help you find the legal aid website in your state, and there may be information and guidance about writing affidavits, and possibly pre-formatted forms. The family court website may also offer similar resources, so I encourage you to check both state and local court websites for more information.
posted by Little Dawn at 12:26 AM on January 8 [1 favorite]

My state's bar association publishes a variety of things targeted at the layperson and I'd assume this is true for other states. So if perchance you live in New Hampshire here's the NHBA's (2008 PDF) Your Guide to the New Hampshire Courts, also available on the state government's court system web site.

This Youtuber, Alexander M. Falconi, is a (non-lawyer) guy from Nevada who supposedly dropped out of college to devote his time to learning enough law to represent himself in his own child custody case and eventually ended up successfully arguing one aspect of it in front of the Nevada Supreme Court. One of his playlists is entitled “High Conflict Child Custody” and another is “Legal Nuts and Bolts”. I don't have any legal knowledge personally by which to judge the value of what he says but he's careful to distinguish between Nevada-specific topics and more generally applicable information, he seems to speak carefully, and is at least self-consistent.

I also helped a friend out in a situation similar to what you describe and the friend said that listening to some of Falconi's videos was helpful, particularly the first one in the “High Conflict Child Custody” playlist which is primarily about the best mindset to approach the legal process from rather than legal details themselves.

(But of course even he recommends that you get your own lawyer rather than trying to do everything yourself. Which is what my friend did, but reading and learning as much as possible ahead of time both helped to get our bearings and in gaming out what questions my friend would ask lawyers during the initial consultations and further on in the process, so that you're not paying someone a three digit hourly rate to explain the basics to you.)
posted by XMLicious at 1:46 AM on January 8 [1 favorite]

If you memail me your email address I can forward the letters that I had people write in support of our stance in the custody case I'm currently involved in, to use as examples. (Though, as bighappyhairydog noted above, in my particular case the judge does not seem to care about them AT ALL because nearly everyone can find someone to write such things.)
posted by rabbitrabbit at 6:37 AM on January 8 [2 favorites]

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