IN RE MARRIAGE OF TRESNAK
Author: Brian

PROCEDURAL HISTORY: This is an appeal involving parental custody. The trial court awarded custody to the father.

FACTS: Linda and Jim Tresnak pursued their respective educations while raising their two sons. After completing her B.A., Linda planned to go to law school. The trial court stated that “anyone who has attained a legal education can well appreciate the time [such] studies consume.” Holding that Linda would not be able to spend adequate time with the children on that basis, it awarded custody to Jim. Also, the court held that Jim would be able to engage in athletic events, mechanical training, and other activities in which the boys were interested.

ISSUE: Whether evidentiary support exists for the lower court’s assumptions about law school and the children’s activities?

RULE: No. To be capable of being judicially noticed, a matter must be of common knowledge or capable of certain verification.

HOLDING: Reversed and remanded.

DECISION: A judge is not authorized to make his personal knowledge of a fact that is not generally known the basis of his action. The trial court’s statements about the necessity of extensive library study are not matters of common knowledge or capable of certain verification. The only evidence about the demands of law school appeared in Linda’s testimony; though she acknowledged the necessity of many hours of study, she also said she did not believe such study would interfere with her childcare. Also, the record does not indicate that Jim would be physically able to engage in the above mentioned activities with the children, nor is there any evidence that the boys are interested in athletics or mechanical training. This stereotypical view of sexual roles has no place in child custody adjudication. Because the record shows that Linda is capable of continuing to provide the children with the same quality of care she has given them in the past, her attendance at law school should not disqualify her from having their custody.