Evidence in a Custody Lawsuit: Witnesses, School and Health Records, Messages and Social Media

Summary

Effective evidence in a custody lawsuit is lawfully obtained, verifiable information that explains a concrete event bearing on the child’s care and safety. Submitting a large number of screenshots or witnesses does not by itself confer an advantage. School attendance, follow-up of treatment, daily care, the relationships between the parents and the proposed living arrangement are assessed together. Fault in the divorce and fitness for custody are not the same issue.

This article explains how to select evidence, which claim to tie it to, and how to present it to the file while protecting privacy. The aim of protecting the child does not make unauthorized access to another person’s account, or constant questioning of the child, lawful. The court’s duty to investigate on its own motion likewise does not make it unnecessary for the parties to present the concrete information they hold in a timely and orderly way. [1, 2]

What must be proved in a custody lawsuit?

Fault between the parents must be separated from the child’s interest

Custody is not a tool for rewarding or punishing one of the spouses. Conduct during the marriage matters for custody if it affects the child’s safety, care or development. By contrast, details of the former spouses’ private relationship whose connection to the child cannot be explained may distract from the focus of the file. A parent’s working, remarrying or having a lower income is likewise not, on its own, proof of inadequate care.

Three questions must be answered when presenting evidence: Which event is being alleged, how does the event affect the child, and in what respect does the submitted record show this? For example, an absence record may show that the child did not attend school; whether the absence was caused by illness, a change of school or neglect of care is investigated separately. The fact a document shows and the interpretation drawn from it must not be confused.

Evidence for the first custody decision and for a request for modification is not the same

In the first arrangement, the existing care and the future plan are examined together. If a modification of custody is sought, the date on which the new conditions arose after the earlier decision must also be explained. Presenting more screenshots of the same old arguments does not by itself prove the need for a new arrangement. A current danger or care need, however, cannot be ignored because an earlier decision exists.

The decision of the 2nd Civil Chamber of the Court of Cassation (Yargıtay) dated 28.02.2024, E.2023/4557, K.2024/1312 is an example of assessing conditions that emerged during the proceedings and of considering a message record submitted to the file together with an expert examination. The decision reached a result of reversal for insufficient investigation on custody. This does not mean that every message is accepted as true or every screenshot as lawful. [3]

Which evidence can explain which claim?

This table is not a ranking of evidentiary superiority. The same document may support one claim while remaining open to other explanations. In preparing the file, the other side’s reasonable explanation should be considered; the document should be preserved in its entirety, not only the part that is favorable. The child’s school or health records can be requested from the relevant institution through the court when necessary.

How is witness testimony assessed?

Direct observation and hearsay accounts differ

What matters is that the witness was present at the event, can state the date and place, and can separate the behavior seen from interpretation. Instead of general labels such as “an uninvolved father” or “a good mother,” the witness should describe who picked the child up from school, who took the child to treatment, or why a particular meeting did not take place. A witness must not relate an event as if known when it is not.

Being a close relative does not automatically invalidate testimony; however, the relationship with the parties, the scope of the observation and consistency with the other evidence are assessed. Relatives can see most events within a family. By contrast, a witness who repeats what a parent has said and a witness who personally observed the event do not have the same source of knowledge.

The witness list and matching witnesses to events

The petition must explain for which event each witness is to be heard. The witness-list arrangement under HMK Art. 240 and the prohibition on a second list must not be overlooked. That the principle of investigation on the court’s own motion applies in custody does not mean that every procedural rule has lost its importance or that unlimited witnesses can be added later. The court’s interim orders and time limits must be followed from the file. [2]

Rather than preparing a witness to use certain statements, the essential thing is to have the witness correctly recall the dates of events and the limits of his or her own knowledge. If the testimony of persons such as a teacher or a caregiver is sought, the concrete facts they know by virtue of their duties should be specified; professional confidentiality and personal data limits must also be observed.

How should school and health records be used?

School records are not just grades. Attendance, a change of school, the observations of the guidance unit, communication with the parents and information about daily functioning can explain the care arrangement. No custody conclusion can be drawn from a single low grade. The timing of the change, developments within the family and the child’s other needs must be assessed together.

In health records too, a diagnosis and parenting capacity are different things. A parent’s receiving treatment, or the child’s receiving psychological support, does not on its own lead to an adverse result. If the allegation concerns a failure of the duty of care, it must be made concrete which treatment was necessary, who had knowledge of it and which step was not taken. On matters requiring medical interpretation, a party’s opinion cannot replace an expert assessment.

The period and scope of the documents requested from an institution must be defined. Instead of asking for the whole health history of every family member, the records relevant to the dispute should be targeted. Sensitive information obtained for the purpose of submission to the file must not be shared on social media or with third parties. Protecting the child’s private life is not a secondary matter that can be left outside the assessment of evidence.

Can a WhatsApp message or a social media post be evidence?

The source and integrity of a screenshot must be explained

Electronic data may be treated as a document under HMK Art. 199. However, being counted as a “document” does not mean the content is indisputably accurate. Whose account it is, when the record was taken, the preceding and following messages, and the possibility of alteration or interruption are examined. The whole of the relevant correspondence, its original file and an explanation of how it was obtained must be preserved. [2]

A record of a conversation to which one is a party is not the same as a record obtained by entering another person’s private account without permission. Collecting evidence through a fake account, by using another person’s password or by accessing a device without permission cannot be recommended. The assessment of lawfulness depends on the concrete conditions of obtaining. If the use of a doubtful record is being considered, this aspect must be examined separately before it is submitted to the file.

Not every post is meaningful for custody

A social media photograph can show the moment it was taken; it does not always show the continuing pattern of life. A holiday photograph, an event post or an announcement of a new relationship does not by itself prove that the child’s care is being neglected. By contrast, the continuity and consequences of conduct that affects the child’s safety or privacy can be investigated with lawfully obtained records.

If there is a chance that a post will be removed, lawful ways of recording it may be considered. A recording step does not automatically settle the material accuracy of the content or the lawfulness of how it was obtained. A request for preservation of evidence must also show which fact is at risk of being lost and why preservation is needed now. [2]

Can a secret audio recording or a video of the child be used?

HMK Art. 189/2 prohibits the consideration of unlawfully obtained evidence. That custody concerns public policy does not remove this prohibition. Exceptional assessments of secret recordings in other disputes cannot be applied as if they gave authority to record continuously within the family or to make the child speak for recording purposes. [2]

Making the child speak to a camera again and again can create problems for both privacy and the reliability of the statement. The child’s natural account must be separated from answers to an adult’s leading questions. If there is an allegation of danger, the aim is not to produce new footage but to take the existing information to the appropriate authorities and secure the child’s safety. Where needed, an expert-assisted interview should be requested.

Does a social investigation report replace the other evidence?

An expert examination makes it easier to understand the care conditions; it does not make all the evidence in the file unnecessary. A report’s failure to assess school records, health needs or important correspondence may be a concrete deficiency. By contrast, the report’s not accepting every claim a party advances does not by itself show that the report is biased.

In its decision of the 2nd Civil Chamber of the Court of Cassation dated 04.06.2018, E.2016/19669, K.2018/7257, a judgment rendered without investigating the mother’s living conditions, despite a report obtained on the father and the child, was treated as insufficient examination. That the child was in fact staying with the father did not make it unnecessary to investigate the other parent’s situation. [4] The details of reviewing a report are in the article on the social investigation report and objection.

How is evidence presented to the court in an orderly way?

A short working chart containing the chronological order of events can be prepared. Next to each event, the relevant document, witness or institutional record is written. For every exhibit submitted to the court, the claim it explains is stated. Instead of many screenshots with the same content, the whole of the meaningful records and their context should be submitted; the original files must be preserved.

As a rule, evidence must be notified at the proper time. The investigation of current facts in custody must not be confused with the regime for submitting evidence in the divorce claims for fault, compensation or other requests. If a new risk has emerged, it should be explained without delay with its date and supporting material; if necessary, an interim measure should be requested separately. Why a record submitted later could not have been submitted earlier should also be stated.

Conclusion

In a custody file, the strength of evidence relates less to its quantity than to its verifiability, its lawfulness and its effect on the child’s life. Witness testimony, institutional records, digital documents and expert assessment should be considered together. The child’s view, too, should not be turned into an instrument supporting the dispute between adults. The articles on hearing the child’s view and examining the reasons for a child’s rejection of a parent are complementary on this subject.

Related articles: Custody Lawsuit: Custody of the Child, Court Criteria and the Litigation Process; Lawsuit to Modify Custody: Conditions, Evidence and New Living Conditions.

Frequently Asked Questions

Is a WhatsApp screenshot enough on its own?

Not in every file. Its source, integrity, manner of acquisition and the fact it shows are examined; it is assessed together with other records.

Can a close relative be a witness in a custody lawsuit?

Kinship alone does not invalidate testimony. Direct observation, the source of knowledge, the relationship with the parties and consistency with other evidence matter; the provisions on refusing to testify are also taken into account separately.

Does a child’s getting a low grade change custody?

Not on its own. The cause and duration of the disruption in education, the parent’s attitude and the child’s needs are investigated.

If the court investigates on its own motion, is there no need to submit evidence?

This approach is not correct. The court’s duty to investigate does not remove the need to explain concrete events and existing records in a timely way.

Should I video what the child tells me?

Making the child speak repeatedly or steering the child is not appropriate. An existing safety concern should be passed to the relevant authorities; any necessary interview should be conducted with expert support.

Sources

1. Law No. 4721, the Turkish Civil Code, Arts. 182, 183, 323–324, 339, 346–351.
2. Law No. 6100, the Code of Civil Procedure, Arts. 27, 145, 189–199, 240, 266–282, 400 et seq.
3. Court of Cassation 2nd Civil Chamber, 28.02.2024, E.2023/4557, K.2024/1312, insufficient examination on custody and the assessment of a message record.
4. Court of Cassation 2nd Civil Chamber, 04.06.2018, E.2016/19669, K.2018/7257, investigation of the other parent’s living conditions.