What Can You Prove? Considerations for Custody Cases

Man And Wife Are Reading Divorce Agreement
June 4, 2017
|   updated:
July 11, 2023

Custody cases are, by default, some of the most emotionally difficult legal proceedings handled by our courts. In such an emotionally charged situation, it can sometimes be difficult to draw distinctions between what a party knows, and what can be proved in a legal sense. And in a court case, the outcome always hinges on what can be proven beyond a reasonable doubt.

Different Forms of Potential Proof

Legally recognized proof can be particularly difficult to come by when a custody case involves allegations of drug and/or alcohol abuse. Any parent involved in a custody dispute is naturally going to be concerned for their child’s treatment while they’re in the care of the other party; it’s perfectly legitimate to expect your children to be protected with wisdom and maturity when they’re out of your care.

However, that expectation doesn’t mean that any hint of a problem will necessarily be admissible in a legal proceeding. It’s entirely possible that a parent may be well aware of their ex-spouse’s issues: social media posts, mutual friends, or behavioral history may be more than enough proof, as far as you’re concerned. However, none of those are legal proof, in and of themselves.

Witness’ Testimony

Of course, you may have personal knowledge of an issue: perhaps you’ve witnessed another party getting drunk, using illegal drugs, or abusing prescription drugs while the children are around. As long as you have firsthand knowledge, you can enter your testimony into evidence.

What if you didn’t see it yourself, but you know someone who did? No matter how much you may trust any third party knowledge, in a court it’s technically known as “hearsay,” and therefore not likely to be admissible unless the person with direct knowledge is subpoenaed (or willing to testify without being compelled).

Photo Evidence

Pictorial evidence is fine, as long as the picture’s legitimacy can be proven. However, pictorial evidence doesn’t always carry the weight that a biased client may believe: a picture of someone surrounded by empty bottles doesn’t necessarily prove they consumed it all—or any of it, for that matter.

Drug or Alcohol Test

The best evidence, of course, is a drug or alcohol test—but it’s highly unlikely that the other party will simply consent to a drug or alcohol test; the presumption of innocence is their right as an American citizen, and unless there’s a prior issue or probationary consideration, a court can’t simply compel a citizen to submit to a test based on someone else’s hunch.

This means some sort of legal discovery will be involved in the process of convincing a judge that a drug or alcohol problem should impact your custody case. The most commonly known is the deposition, but there are other legal mechanisms as well by which legal proof of a drug or alcohol issue may be effectively entered into your custody case.


No matter how a parent approaches their custody case, it’s crucial to take the time and care to build it properly. Understanding the difference between what you think, what you know, and what you can prove may be the difference when the verdict is delivered.

Read more information about custody and alcohol or call (714) 975-7200 to learn more about using Soberlink for alcohol monitoring in Family Law cases.

About the Author

Soberlink supports accountability for sobriety through a comprehensive alcohol monitoring system. Combining a breathalyzer with wireless connectivity, the portable design and technology includes facial recognition, tamper detection and real-time reporting. Soberlink proves sobriety with reliability to foster trust and peace of mind.

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