How to Prepare Evidence for a Georgia Custody Case

Getting information from the other side

Georgia’s Civil Practice Act lists the discovery methods: depositions on oral examination or written questions, written interrogatories, production of documents or things or permission to enter property, physical and mental examinations, and requests for admission. Unless the court orders otherwise, how often they are used is not limited (O.C.G.A. § 9-11-26(a)).

Unless limited by court order, a party may obtain discovery of any matter, not privileged, that is relevant to the subject matter of the case. It is not a ground for objection that the information would be inadmissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence (§ 9-11-26(b)(1)).

In actions for child support, alimony, equitable division of property, modification of child support or alimony, or attorney’s fees, each party also serves a sworn Domestic Relations Financial Affidavit at least 5 days before any temporary or final hearing. Cases filed with a complete settlement agreement or consent order resolving all issues but the divorce itself are exempt unless the court orders otherwise (Uniform Superior Court Rule 24.2). See the financial affidavit guide.

Subpoenas for witnesses and records

The Supreme Court of Georgia publishes standard Superior Court forms for compelling attendance and records:

• SC-8, Witness Subpoena (revised 01/25), which directs a witness to appear in the courtroom on a set date to be sworn as a witness, and to attend from day to day until the case is disposed of.
• SC-9, Subpoena for the Production of Evidence (revised 01/25), which requires the person named to appear and bring the listed items to be used as evidence.

Both forms have a signature line for the Clerk of Superior Court. Ask the clerk in your county how subpoenas are issued and served there.

Temporary hearings have their own limits

• At temporary hearings, the parties and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless the court orders otherwise, and any affidavit must be served on opposing counsel at least 24 hours before the hearing (Uniform Superior Court Rule 24.5(A)).
• Except by leave of court, the parties’ minor children may not give oral testimony at temporary hearings and are excluded from the courtroom. When custody is in dispute and the court directs it, the children must be available for consultation with the court, and on request the proceedings in chambers are recorded (Rule 24.5(B)).

Hearsay and admissions

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted (O.C.G.A. § 24-8-801(c)). It is not admissible except as the hearsay article provides. But if a party does not properly object to hearsay, the objection is waived and the evidence is admissible (§ 24-8-802).

Several categories matter often in custody cases:

• The other parent’s own statements. Admissions are not excluded by the hearsay rule. An admission includes a statement offered against a party that is the party’s own statement (§ 24-8-801(d)(2)(A)). A text or email from Daniel Reyes, offered by Maria Lopez against Daniel Reyes, falls in this category, once it is authenticated.
• Records of regularly conducted activity, made at or near the time by someone with knowledge and kept in the regular course of a business activity, with the foundation shown by the custodian or other qualified witness or by a qualifying certification, unless the source or circumstances indicate a lack of trustworthiness (§ 24-8-803(6)).
• Statements for medical diagnosis or treatment describing medical history or symptoms, insofar as reasonably pertinent to diagnosis or treatment (§ 24-8-803(4)).

Authenticating texts, photos, and recordings

Before an exhibit comes in, there must be evidence sufficient to support a finding that the item is what you claim it is (O.C.G.A. § 24-9-901(a)). The statute gives examples, including:

• Testimony of a witness with knowledge that a matter is what it is claimed to be (§ 24-9-901(b)(1)), such as your testimony that you took a photo, or received a message on your phone.
• Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken together with the circumstances (§ 24-9-901(b)(4)), such as a phone number, a nickname, or a reference to an event only the sender would know about.
• Identification of a voice, whether heard firsthand or through a recording, by someone who has heard the voice under circumstances connecting it with the speaker (§ 24-9-901(b)(5)).
• For telephone conversations, evidence that a call was made to the number assigned to a person, together with circumstances such as self-identification showing that person answered (§ 24-9-901(b)(6)).

If you plan to compare handwriting against authenticated samples, those specimens must be furnished to the other party no later than ten days before trial (§ 24-9-901(b)(3)).

Investigations and guardian ad litem reports

• A custody investigation. On a motion that contains a specific recitation of actual abuse, neglect, or other overt acts that have adversely affected the child’s health and welfare, the judge may direct the family and children services agency or another appropriate entity to investigate each parent’s home life. The report goes to the judge and must be made available to the parties for a reasonable period before the hearing, and both parties have the right to confront and cross-examine the person who conducted the investigation or compiled the report if adequate and legal notice is given. This applies only where custody is contested (O.C.G.A. § 19-9-4).
• A guardian ad litem report. Unless the appointing judge directs otherwise, the guardian ad litem submits a written report of findings and recommendations. At trial the report is admitted into evidence for direct evidence and impeachment purposes, or any other purpose allowed by law. It is not a substitute for the guardian ad litem’s attendance and testimony at the final hearing unless all parties agree (Uniform Superior Court Rule 24.9, part 6). Unauthorized sharing of the report can be sanctioned, including by contempt (Rule 24.9, part 6(d)).

Protect personal information

Unless the court orders otherwise, pleadings and other papers filed with the court, including exhibits, must include only the last four digits of a Social Security number, taxpayer identification number, or financial account number, and only the year of an individual’s birth (Uniform Superior Court Rule 36.17). Redact bank statements and pay stubs before you file them.

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• O.C.G.A. § 9-11-26, discovery methods and scope
• O.C.G.A. § 24-8-801, definitions and admissions
• O.C.G.A. § 24-8-802, hearsay rule
• O.C.G.A. § 24-8-803, hearsay exceptions
• O.C.G.A. § 24-9-901, authentication
• O.C.G.A. § 19-9-4, custody investigations
• Uniform Superior Court Rules 24.2, 24.5 (witnesses), 24.9 (guardian ad litem) and 36.17 (sensitive information)
• SC-8, Witness Subpoena
• SC-9, Subpoena for the Production of Evidence