Let's look at one piece of custody litigation by examining a set of opposing affidavits. Suppose the parents, Jack B. Nimble and Suzie B. Qwik, have two children, Julie, age 1, and Jack Jr., age 12. Suzie has announced she wants a divorce, and she and Jack have a huge argument. Jack leaves the house and moves in with a female coworker who lives across town, a forty-five-minute trip during light traffic. Suzie serves Jack with divorce papers. Jack responds by scheduling a court hearing to get custody of the children. (Remember, you have to prepare an affidavit to go with a motion.) Typically, motion papers filed early in a divorce action would address a multitude of issues, but the following affidavits focus only on custody.

Take a look at the two sample affidavits that follow, one from Jack and one from Suzie. These are composites of affidavits and do not represent a complete filing. Since Suzie filed for divorce, she is referred to as the plaintiff. Jack is referred to as the defendant.

After you read these, try to put yourself in a judge's shoes. What would you do with this information if you were the judge? Next, look at the “trans-lation” — the judge's probable interpretation — of these affidavits. With any luck, you'll figure out what information is helpful and what will come back to bite you. Then you'll know what to put into an affidavit if you ever have to prepare one.

Dad's Affidavit

• I am the Defendant in this divorce proceeding.

• I make this affidavit in support of my motion for custody of my children, Julie and Jack Jr.

• Plaintiff and I have been married for thirteen years. Julie is one and Jack is twelve.

• Since the children were born, I have been their primary caregiver. I have been responsible for preparing their meals, getting them dressed, keeping them clean, and making sure that they receive necessary medical and dental care. When they were infants, I got up with them in the night. Now I get up with them in the morning and make our son's breakfast before I leave for work. I read them stories before I tuck them in at night. I stay at home with them when they are sick. I have been the coach of Jack's baseball team for four years. I have always been available for the children and they are closely bonded to me.

• Plaintiff has been an inconsistent and unstable mother. Although she does not work and stays home during the day, this is the only time she spends with the children. Our son is in school all day, so he really only sees his mother for a couple of hours each afternoon before I get home from work. Plaintiff does take care of the baby while I am at work, but as soon as I get home she relies on me to provide care. Most days she leaves as soon as I get home to go party with her friends, and she is rarely home on weekends.

• Plaintiff has never gotten up with the children when they woke during the night. She likes to sleep in, so she never made breakfast, either. One reason she likes to sleep late is that she spends a lot of her evenings out with friends, bar hopping and partying. I usually go to bed by midnight, and often she hasn't come home by the time I turn in.

• I have been the parent who has made our house into a home for our children. Although my spouse doesn't work, she does not believe it is her job to clean the house or do the laundry. Although I work full time, I am left to do all the household chores. If it weren't for me, our children would never have clean clothes or a clean house. I have resorted to asking Plaintiff to use paper plates and cups to reduce the amount of dirty dishes that are left in the sink for me to clean up when I get home.

• As if it's not bad enough that Plaintiff is never home, she is also setting a very bad moral example for our children. Plaintiff drinks, smokes, and has had several affairs. Sometimes she goes to the casinos, where she drinks, smokes, meets men, and gambles. Now Plaintiff is involved with our next-door neighbor's twenty-year-old son. This is very embarrassing for our son as well as humiliating to me.

• My spouse really isn't much interested in the children. She has her own life and just wants to be free to fool around and do her thing.

• As a result of the aforementioned facts and circumstances, I am the parent most suitable to provide care for the children and it would be in their best interests if I were awarded temporary legal and physical custody.

Signed, Jack B. Nimble

Mom's Affidavit in Response

• I am the Plaintiff in this divorce, and I submit this affidavit in response to my husband's affidavit and in support of my motion for custody of our children.

• First of all, I would like to say my husband must be living on another planet with another family. His affidavit is an incredible distortion of reality.

• Defendant states that he has been the primary caregiver to our children, but nothing could be further from the truth. I have been a stay-at-home mother who has always cared for the children and the home. It is simply not possible for Defendant to provide much care for the children or take care of the house because of his work schedule. Defendant works sixty to eighty hours a week, including Saturdays. When he is at home, he is often too tired or too drunk to do anything but watch television or sleep.

• While it is true that Defendant regularly prepares breakfast and puts the children to bed at night, this is his only contact with the children on a day-to-day basis. Since he works most Saturdays, the only other time he sees the children is on Sunday. Even then, he usually only spends a couple of hours playing games or watching television, and then mostly with our son.

• Defendant alleges he got up with the kids when they were babies. While he did on occasion get up and bring a baby to me to nurse, that was the limit of his participation. He likewise does not provide care when they are sick or take them to the doctor.

• Defendant accuses me of partying, staying out late, and having a boyfriend. In the last year I have gone out in the evenings because our marriage is in such bad shape I need to spend time with friends. The kid next door mows our lawn and helps me with heavier tasks around the house because Jack can't find the time. The only reason Defendant accuses me of having an affair is because he is jealous and controlling. In fact, Defendant accuses me of having an affair with any man who as much as says hello to me, including the postman, bank attendant, and grocery store clerk.

• Defendant alleges he provides care for the children after work and on weekends. While this is true to some extent, he neglects to mention that he works sixty to eighty hours a week, including Saturday. Defendant does make breakfast for our twelve-year-old son before he leaves for work in the morning but doesn't get home until 7 or 8 P.M. most nights. When he comes home, he does read to the kids but then usually goes to his study to work some more.

• Defendant provides the money to run our household. I provide everything else. He never has anything nice to say to the kids and me. He is forever putting me down. If I don't do things his way, he can be very nasty. Most recently, he told me not to load the dishwasher because I didn't do it properly and the dishes don't get clean.

• Defendant was always controlling and possessive, but lately he has become threatening and scary. He has threatened to hurt me more than once and even pushed me out of his way on several occasions when we were arguing and he wanted to leave.

• Defendant has a serious drinking problem. Often when he comes home at night, he reeks of alcohol. About a year ago, he was arrested for drunk driving on his way home from work.

• Jack also has never taken the children to the doctor or the dentist. I drive them to their appointments. I make sure they have appropriate clothes and get regular haircuts, and I make sure our son does his homework. Jack has no clue about the children's lives.

• Jack has moved in with a woman he knows from work. He has been trying to insinuate her into our children's lives. He accuses me of setting a bad moral example. Talk about the pot calling the kettle black!

• I should have custody of our children. Jack should pay enough support to me and the children so we can stay in the house. This is the only house the children know, and they need some stability during this stressful time.

• I am sure Jack loves our children. He should spend time with them and get to know them better.

Signed, Suzie B. Qwik