Evidence

Evidence

­­­­­___In General
   The evidentiary ingredients in a custody dispute, by the very nature of the contest and the individuality of the disputants are, indeed, numerous, varied, and interrelated and thus each factor must be weighed and considered in its relationship to all of the others shown to exist.  Brandt v. Brandt

­­___Expert Witness
   When considering the issue of custody of a child, the court was not obliged to follow the advice of an expert.  In Seymour
   Recommendation of expert that the parties continue sitting physical custody of child was not binding on the court.  In re Felson
   In a case involving custody of a child, receiving the opinion of a psychiatrist would not usurp the decision making function of the court.  Marcus v. Marcus

___Hearsay
   Statements concerning custody preference of the children made to a third party shortly before trial expressing their then existing state of mind, though hearsay, were admissible if made under conditions assuring trustworthiness; though it was error to exclude the statements, the error did not result in any prejudice to respondent.  In re Rizzo
   Where a probation office’s report was entirely hearsay, as the person who made the report was not under oath or subject to cross-examination, and the probation reports were not in the record on appeal, the appellate court could not determine the propriety of the trial court’s custody award and remanded for further evidence.  Walter v. Walter

___Improperly Excluded
   Where there was no hearing on the merits of the mother’s petition to change the custody of the child and the custodial father was not permitted to introduce testimony bearing on the dispute as to the proper person to have the care and custody of the child, as the child was treated as a ward of the court, it was the duty of the court to hear testimony in order to ascertain whether a change in the custody should be made; therefore, the trial court committed reversible error in declining to hear the witnesses tendered by the custodial father on the issue of custody.  Gerst v. Gerst

___Interview
   The scope of questioning in a child custody interview is largely a matter of the judge’s discretion; he is not limited to asking what the children expressly prefer but may determine this from their answers to other questions, their personality, and other circumstances.  In re Milovich

___Prior Hearing
   The trial court erred in considering evidence obtained from a previous hearing held before a different judge in determining custody of the children; where evidence is contradictory on matters crucial to a determination of comparative parental fitness, the court does not serve the best interests of the child unless it has the ability to discern the truth by personally observing the demeanor of the conflicting witnesses.  In re Akins

___Properly Excluded
   Evidence, offered by a former husband, to show that prior to the order awarding his former wife custody, evidence that wife had temporarily worked in a tavern, at hours which precluded her giving proper care to the child was properly excluded where this was not a continuing condition.  Handrich v. Handrich

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