Family Law and Evidence

• Publication year: 2024
• Citation: Vol. 46 No. 1
• Author: Written by Deborah S. Bull, CALS, CFLS

FAMILY LAW AND EVIDENCE

Written by Deborah S. Bull, CALS, CFLS^*

Many judges and attorneys in family law matters get used to the Evidence Code getting short shrift in family law; and may think it is not an area to which they need to pay much attention. As the trial judge stated in the case of In re Marriage of Davenport:¹

I deal with exhibits that are written on towels. I get things on Kleenex. I mean, I deal with so many self-represented people, they have no idea what evidence is. I just let it all in. It goes contrary to my previous training as a zealous DA hanging onto the Evidence Code, but I threw it out the window when I started doing family law.

Davenport is best known for the First District's exhortation on the need for attorneys to be civil, but it has important lessons to teach on evidence as well.² First and foremost, the Evidence Code does apply to Family Law. More, the judge is presumed to apply it correctly, and despite any hyperbole about throwing it out the window an appellate court will look at what actually happened throughout the proceeding.³

With the stage set, let's look at a few areas where the Evidence Code commonly intersects the world of Family Law.

1. DECLARATIONS ARE NOT (NECESSARILY) EVIDENCE

Since Reifler,⁴ we have been accustomed to teeing up the evidence in family law via supporting and opposing declarations, in most instances without live testimony. As the appellate court knew fifty years ago in Reifler, a great majority of Family Law hearings are motion hearings, decided after minimal argument on a law and motion calendar where the trial judge is often faced with a dozen or more cases to sort through in a few hours. The Second District in Reifler affirmed that practice as authorized, noting only that the judge had to exercise discretion and actually consider whether live testimony should be allowed, not merely apply a blanket rule.

In Elkins,⁵ the California Supreme Court was clear that there are different rules between law and motion matters and an evidentiary hearing—a trial. At trial, live evidence is fundamental, and declarations are prima facie objectionable hearsay under Evidence Code section 1200. Of course, for the other side's declaration, you can rely on the "opposing party statement" exception of Evidence Code section 1220; for your own client, that path is likely to be barred. Family Code section 217, passed in response to Elkins, embodied and strengthened the preference for live testimony even in motion hearings and set out the procedure for requesting it.

Here is the rub: in an evidentiary hearing, not a motion hearing, an attorney must ask to have a declaration considered as evidence. Declarations are not automatically admitted or considered.⁶ In Shimkus,⁷ the parties submitted declarations, but before and during the hearing the court stated it was only considering the live testimony and the admitted documents. Neither side introduced either declaration as evidence, and the appellate court confirmed that they were not...