Chapter 4 - § 4.9 • EVIDENCE AND WITNESSES

• Jurisdiction: Colorado

§ 4.9 • EVIDENCE AND WITNESSES

As noted previously, the court's findings concerning parental responsibilities must be sufficient to allow a reviewing court to determine the grounds on which the court reached its decision, and the decision must be supported by competent evidence. Jaramillo, 543 P.2d at 1282. That evidence will consist of physical evidence and testamentary evidence.

§ 4.9.1—Physical Evidence

Physical and documentary evidence can be very helpful in convincing the court to enter particular orders. Physical evidence is more reliable than testimonial evidence, has no personal bias, and may be less likely to misrepresent facts. In addition, it is usually more acceptable for a party to present negative information about the other party through physical evidence.

Examples: Medical records may be used to show that one parent had frequent contact with a child's doctor while the other parent had no contact. Daycare records may be used to show that one parent was primarily responsible for both dropping off and picking up a child from daycare.

School records may be used to show that a child excels while living primarily with one parent but falters while living primarily with the other. They can also show that a child has frequent school absences when with one parent.

E-mail and text communications from one parent to the other may be used to show that a parent is unable to work cooperatively with the other parent for the benefit of the child.

§ 4.9.2—Testimonial Evidence

Despite the importance of physical or documentary evidence, the testimony of witnesses in parental responsibilities cases is critical for several reasons. First, some evidence is not available in physical form. Second, introduction of physical evidence is time consuming and must be used with discretion and consideration for the length of the hearing. Third, introduction of some documentary evidence may be prevented by hearsay or other evidentiary rules. Testimony of witnesses also allows the court to assess the demeanor and credibility of the witnesses, who often will have important relationships with the child. Finally, it allows the witness to express opinions, state preferences, and explain reasoning.

Lay Witness Testimony

In many cases, the parties will be unable to afford or will not need expert witnesses. In those cases, all testimonial evidence will come from the parties' own testimony and that of other lay witnesses. While lay witnesses are generally called to testify about facts, courts in domestic relations cases frequently allow lay witnesses to give opinions as well. These opinions are limited to opinions that are rationally based upon the perception of the witness; are...