How to Prepare Evidence for a North Carolina Custody Case

The rules that apply

The North Carolina Rules of Evidence apply to all actions and proceedings in the courts of the State, except as otherwise provided by Rule 1101(b) or by statute (Rule 1101(a)). A custody case is a civil action heard by a judge, and the Judicial Branch reminds self-represented parents that they are held to the same rules of evidence and procedure as a licensed attorney.

Getting information before trial

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the case (Rule 26(b)(1)). The main tools are:

• Interrogatories (Rule 33). Written questions answered under oath. A party may serve no more than 50 on any other party, counting parts and subparts separately, unless the court grants leave for good cause or the other party agrees. Answers are due within 30 days after service, except that a defendant may answer within 45 days after service of the summons and complaint.
• Requests for production (Rule 34). Requests to produce documents, electronically stored information, and things in the other party’s possession, custody, or control. The written response is due within the same 30 or 45 day periods.
• Requests for admission (Rule 36). A matter is admitted unless the other party serves a written answer or objection within 30 days after service, though a defendant need not respond before 60 days after service of the summons and complaint unless the court shortens the time.
• Depositions (Rules 30 and 31). Questioning a witness before trial, orally or on written questions.

The court can limit discovery that is unreasonably cumulative, duplicative, or unduly burdensome given the needs of the case (Rule 26(b)(1a)). Your district’s local rules may add scheduling or disclosure requirements for domestic cases.

Subpoenas for witnesses and records

A subpoena commands a person to testify or to produce records. The clerk of court issues a subpoena, signed but otherwise blank, to a party who asks for it, and the party completes it before service (Rule 45(a)(4)). Any person who is not a party and is at least 18 may serve it, by delivering a copy or by registered or certified mail, return receipt requested, and a copy must also be served on each party (Rule 45(b)). A person served with a subpoena for documents or a deposition can object in writing within 10 days, or before the compliance date if that is sooner (Rule 45(c)(3)).

Relevance

Relevant evidence is evidence having any tendency to make a fact of consequence more or less probable (Rule 401). Relevant evidence is generally admissible and irrelevant evidence is not (Rule 402), and the judge may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, confusion, or undue delay, waste of time, or needless cumulative evidence (Rule 403). In a custody case, the question is what bears on the child’s interest and welfare under G.S. 50-13.2(a).

Authenticating texts, photos, and records

Before an exhibit is admitted, there must be evidence sufficient to support a finding that it is what you claim it is (Rule 901(a)). Examples include testimony of a witness with knowledge and distinctive characteristics such as appearance, contents, and substance, taken together with the circumstances (Rule 901(b)(1) and (4)). To prove the content of a writing, recording, or photograph, the original is required except as the rules or a statute provide (Rule 1002), and a duplicate is generally admissible to the same extent as the original (Rule 1003).

Hearsay

Hearsay is a statement, other than one made by the person while testifying at the hearing, offered to prove the truth of what it asserts (Rule 801(c)). It is not admissible except as a statute or the rules provide (Rule 802). Common routes in custody cases:

• The other party’s own statements, offered against them, are admissible under the exception for admissions by a party-opponent (Rule 801(d)).
• Business records of a regularly conducted activity, shown by a custodian or other qualified witness or by an affidavit or certification. Authentication by affidavit is confined to the records of nonparties, and you must give the other parties advance notice (Rule 803(6)).
• Medical statements made for purposes of diagnosis or treatment (Rule 803(4)), and statements of a person’s then existing state of mind or physical condition (Rule 803(3)).

What you cannot use

• Communications in court-ordered custody mediation are absolutely privileged and inadmissible in court, except as the statute provides, and neither the mediator nor the parties are competent to testify to them. There is no privilege for communications in furtherance of a crime or fraud (G.S. 50-13.1(e) and (f)).
• The Judicial Branch notes that you do not need to bring evidence to mediation; evidence matters if the case goes to a judge.

At the hearing

At the request of a party, the court may exclude witnesses so they cannot hear other testimony, but it cannot exclude a party who is a natural person (Rule 615). Witnesses with first-hand knowledge, such as teachers, relatives, or neighbors, can testify to what they saw and heard. See the hearing guide for how a custody trial runs.

Primary sources

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

• Rules of Civil Procedure (G.S. 1A-1), Rules 26, 30, 31, 33, 34, 36, 45
• Rules of Evidence (G.S. 8C-1), Rules 401 to 403, 615, 801 to 803, 901, 1002, 1003, 1101
• G.S. 50-13.1(e) and (f), confidentiality of custody mediation
• G.S. 50-13.2, best interest and welfare of the child
• North Carolina Judicial Branch, Child Custody help topic
• North Carolina Judicial Branch, Custody Mediation help topic