TOOL OF THE DAY: Trial testimony…Preserving Error

CATEGORY: Family Law

This post contains an example of how to testify in a way that integrates your rights without ever having to say the words “I have these rights” or “it is my constitutional right to the care, custody, and control of my child.”

The way you testify could make a huge difference in the outcome of your trial. If you do this right it could mean the difference between preserving what you need on appeal to challenge more than just “The judge didn’t make the right best interest decision.”Which, by the way, best interest challenges on appeal, if you fall into the trap of arguing who is the best parent or what a great parent you are, rarely, if ever prevail.

What do you do when your ex testifies that “You don’t personally spend time with your child,” or “you don’t feed them yourself,” or “you don’t participate in their school activities,” and “you don’t get involved in their life?” We could script these because they are such common attack tactics by a parent hoping to cut you out of your child’slife.

Most parents are urgently and eagerly awaiting to prove to the judge that they are most certainly involved in their child’s life. Some parents line up the principal of the school, daycare providers, friends, neighbors, and relatives to testify that they are a loving, involved parent in their child’s life — only to still leave devastated that the judge didn’t side with them.

First of all, change the way you approach this. As long as you are trying to prove that you are a great parent and leaving this as a he said/she said and “please pick between us judge; which parent is better than the other,” you are not controlling the court the way you should. You need to limit the judge’s discretion according to the limits that are naturally placed on them through the supreme law of the land. But many of you know that trying to state it bluntly to the court and get them to face that there is a power greater than theirs have been met with resistance and suffered greatly.

So rather than throwing power in your judge’s face and getting into a power play (which you will most always lose) how about if you integrate the protection for your rights into your testimony. Here is a scenario to help you learn to use this tool:

Let’s say, the other side has just testified that “you are just not taking care of your duties and responsibilities with your children.” You have been painted as a parent who doesn’t spend enough time with their child and doesn’t feed them (their new wife or husband does this for them), you are accused of not bathing them personally, that you do not do homework with them personally, or even drive the child to their activities yourself (they might accuse you of having your mother or father do this for you while you are at work).

Here is a sample response on how you could preserve error, protect your rights, change the power dynamic in the trial, and position the judge to address the issue of what you are or are not required to do as opposed to who is the better parent:

Your attorney asks you: “Do you have a close relationship with your child?”

Your response: “Yes.”

Your attorney asks you: “Do you have a bond with your child?”

Your response: “Yes.”

Your attorney asks you: “Could you give me an example of that loving relationship and close bond?”

Your response: Describe an activity or and interaction or an exchange that you had with your child. This could be anything that is meaningful and special to you. Something that would indicate the specialness and uniqueness between you and your child would be great. An example would be something like: “Whenever my child is with me we have this special handshake we do every time they remember to use the potty and don’t have an accident in their pants. We do this. And you could demonstrate it. Or you could share something like, “every Thursday we rush to the refrigerator when we get home because my child knows that their favorite dip that Imake for them is waiting for them.”

Your attorney asks you: “Is your child fed?

Your response: “Yes.”

Your attorney asks you: “Is your child clothed and have a roof over their head?”

Your response: “Yes.”

Your attorney asks you: “Have you ever been found to be unfit by a court of law?”

Your response: “No.”

Your attorney asks you: “Are your children doing well in school?”

Your response: “Yes.”

Your attorney asks you: “Are your children healthy?

Your response: “Yes.”

Your attorney asks you: “Do you make sure that your children are fed, clothed, bathed and get to their activities?”

Your response: “Yes.”

Your attorney asks you: “Are you making sure that all of your children’s basic needs are being met?”

Your response: “Yes.”

Your attorney asks you: “Do you share your values with your child?”

Your response: “Yes.”

Your attorney asks you: “Could you give me an example of how you share your values with your child?”

Your response: “I read to my child every night and then give them a hug. I believe that this contact helps develop my child into a caring individual who feels loved. I believe that my reading to them at night allows me to share stories with them that will help them shape how they make decisions in life. And sometimes I just tell them a story about their ancestors or we play a quick game of checkers or some other game that helps them with memory or to learn strategy. These are all things that I believe are valuable and not things that I can do with them over the phone. And I believe that these things should be consistent and frequent in order to build the proper foundation where my child can develop into a happy, healthy, productive citizen in society as an adult.” (These are just examples, you would of course use examples that are relevant and specific to you. Notice though how you are not asking the judge to decide whether you are a good parent, you are simply sharing how you exercise your rights.)

Your attorney asks you: “Do you make sure that your children are cared for if you are not personally available?

Your response: “Yes.”

Your attorney asks you: “Do you believe that it is against the law to have others help you care for your child when you are not available?”

Your response: “No.”

Your attorney asks you: “Where did you get this belief?”

Your response: I am adequately caring for my child and choosing to have others also care for my child satisfies the requirement that I am responsible for the care and nurture of my child. The First Amendment protects me to choose who influences my child and what kind of influence on my child. If I am not available it is my understanding of the law that as long as I make sure that my child has adequate care the person who provides that care should not be relevant to this court unless the person that I choose is abusing my child or a registered sex offender. (This is where you can cite some case law.) I make decisions on my child’s behalf regarding their health, welfare, safety, etc. And from reading case law from the United States Supreme Court, like Casey v. Planned Parenthood, Stanley v. Illinois, and Troxel v. Granville,” I am the decisionmaker even if this court believes they could make a better decision. Since this court is not entitled to interfere with my decision I believe that the other parent asking the court to do so should be denied since it is not within this court’s authority to insert its belief or preference over mine as long as my decisions does not interfere with the other parent’s individual time separate from mine, and vice versa. It is my belief that the other parent is asking for relief that this court must deny if this court cannot provide a compelling state interest and means to justify that compelling state interest that is narrowly tailored under strict scrutiny as these are parental rights that are fundamental rights necessary for proper parenting.

Your attorney finishes if that is all they needed to respond to.

Notice how you don’t testify in a way that is reactive but instead with leverage.

How is this leverage you might ask? What you just did is repeat back what the appellate court might look for if you were to appeal on the basis that the judge does not have the authority to interfere with your ability to exercise your rights equally to the other parent if they did not adjudicate you unfit.

Notice that you have also covered the criteria that is listed for being considered a fit parent. While it is not your duty to prove your innocence you do need to make sure that the court has no reason to doubt that you satisfy at least the basic minimum requirements under the supreme law of the land for justifying the protection of your rights.

This is just a piece of what you need to do. Keep reading daily for other pieces to help you prevail and protect your child and you to continue to be together regardless of whether you have a good or bad relationship with the other parent.

Thanks for reading. I hope that this helps you understand more what it looks like to introduce protection of your constitutional fundamental parental rights into your trial without ever having to say the words “it is my constitutional right…”

Have a good night.

Meet me back here tomorrow for another daily blog tool entry.


(Want to learn more of your rights, we cover them in our book: “NOT in The Best Interest of The Child.” So if you want to learn more about your rights so you can argue them more effectively, you can get the book here.)

[You can learn more about this and how to reason through your rights and protect your rights in our books and courses. Click at the top on Store and you will find the books and training tabs. The book teaches you your rights and the training courses teach you how to argue them like I demonstrated above.]

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*We are not telling you to disturb the peace. This paragraph is a quote from the movie “Selma” 2014.

Strategic Parental Rights Strategist, Instructor, Constitutional Scholar, and Author

Divorce Solutions and Child Custody Solutions

Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)

Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)


Twitter: (@fixfamilycourts)



(Updated on March 28, 2019.)