Melissa Isaak’s “Anatomy of a Custody Case” Part 7: Affidavits, Witnesses, and the “Best Interest”

As witness to her session “Anatomy of a Custody Case”, I saw Melissa blend legal precision with a candid disdain for the system’s biases, much like Stephen Baskerville’s convention critique of family courts as state-driven parental alienation machines. While Baskerville called for systemic reform, Isaak equipped fathers with practical courtroom strategies. Today, we’ll unpack her takedown of the “best interest of the child” standard and her advice on choosing witnesses to bolster a custody case.

Isaak didn’t hide her frustration with the “best interest” standard. “The best interest of the child standard is the prevalent standard that’s used in family court,” she said. “There’s a lot of frustration that we have with that standard because there is no definition of what it is. It’s just a set of factors.” These factors, she listed, include “the mental and physical health of the parents, which parent will facilitate a relationship with the other parent, abuse or neglect issues, special needs of child, the age and gender of the child.” She took issue with the latter: “I take huge issue with that because just because you’re a man doesn’t mean you can’t raise a three-year-old little girl, vice versa. I think there’s some huge constitutional issues with the court considering age and gender, but nonetheless, it’s still in the books.”

Other factors, like financial and social capacity, also drew her ire. “I don’t even know why that’s in there either because there’s a lot of parents who don’t have the financial means to raise children,” she said, noting courts offset this with child support or alimony. The child’s wishes were another sore point: “That’s also very problematic because alienation comes into play. If a parent knows that the court is going to consider the wishes of the child, they look at who was the primary caretaker.” She argued these factors (codified in statutes like Alabama Code § 30-3-152) are applied “in a very prejudicial manner,” echoing Baskerville’s charge that vague standards empower judicial bias.

To counter this, Isaak stressed the power of witnesses. “Witnesses are so important,” she said, but warned against relying on affidavits: “I got 10 affidavits from 10 different people, that is called hearsay. Your witnesses have to be in court, sworn in, and be subject to cross-examination.” Hearsay, she explained, is “an out of court statement made in court for the truth of the matter asserted,” so affidavits from an ex-husband claiming the mother lies or uses drugs won’t cut it unless he testifies.

She advised recording witness commitments in one-party states (e.g., Alabama Code § 13A-11-30): “If you have someone who’s going to testify for you, if you’re in a state that allows recording, record your conversation with that person.” Why? “Witnesses will flip on you in a heartbeat,” she said, citing mother-in-laws who promise to testify but backtrack in court. In two-party states (e.g., Florida Statutes § 934.03), she suggested email trails: “Get an email stream started. ‘Miss Smith, thank you so much, you told me that she was arrested for stealing, for drugs.’ She responds back, ‘Anytime, I’ll do anything for my grandkids.’ Bring those to court.”

Ideal witnesses, Isaak said, testify to the father’s relationship with the child, a “best interest” factor. “You want witnesses who can testify to relationship with your child,” she said. “Co-workers: ‘Every day he leaves at quarter to three, comes back at three o’clock, child sits in his office, they do homework together.’ Teachers, neighbors, family members, friends.” Neighbors might say, “I see dad outside, he’s grilling with the kids, he makes supper,” showing active parenting. Even former spouses can help: “I have a lot of clients who get along great with their first wife. First wife can come in: ‘He’s not short-tempered, we’ve been sharing custody for seven years, it’s been going great.’”

Isaak’s witness strategy was a practical counter to the “best interest” standard’s biases, aligning with the Palmers’ convention push to document court misconduct. Her focus on live testimony and recorded commitments give fathers tools to challenge skewed narratives in court.

In the next part, we’ll cover Melissa’s tips on exhibits, courtroom demeanor, and handling antagonistic communications to avoid emotional traps.

-David B
Fathers Anonymous