In California Family Court the parties traditionally have been allowed to prove their case through written declarations. The admissibility of written declarations has recently come into question by a ruling of the California Court of Appeal for the 5th District, In Re Marriage of Swain, 21 Cal.App.5th 830 (2018). This ruling makes the submission of written declarations without the opportunity for the opposing party to cross examine the declarant questionable.
Written Declaration/Affidavit
A party to a family law matter including a divorce, custody, support or modification hearing may provide a written declaration under oath. (Reifler v. Superior Court, 39 Cal.App.3d 479 (1974) However, that declaration may still be inadmissible at trial unless the party making the declaration is available for cross examination at the hearing pursuant to Family Code Section 217, California Rule of Court 5.113 and In Re Marriage of Swain, 21 Cal.App.5th 830 (2018). Specifically, Family Code Section 217 requires the Court to allow either party to introduce any live, competent testimony that is relevant and within the scope of the hearing unless the Court finds good cause to refuse to receive live testimony. In addition to the requirement for the Court to receive live testimony, a party has the right to cross examine any party or person testifying through a written declaration at the hearing. (In Re Marriage of Swain, supra) In order to find good cause to refuse to receive live testimony the Court must consider the factors set forth in California Rules of Court 5.113 which reads as follows:
(1) Whether a substantive matter is at issue–such as child custody, visitation (parenting time), parentage, child support, spousal support, requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties;
(2) Whether material facts are in controversy;
(3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses;
(4) The right of the parties to question anyone submitting reports or other information to the court;
(5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c); and
(6) Any other factor that is just and equitable.
In order for the Court to refuse to receive live testimony the Court would be required to state on the record or within a written statement of decision which of these factors were relied upon by the Court to exclude any live testimony.
Live Testimony of Third-Party Witnesses
A party seeking to present live testimony from witnesses other than the parties is in addition to the requirements for party witnesses also required under Family Code Section 217 to provide and file prior to the hearing a witness list with a brief description of the anticipated testimony. Failure to provide the witness list before trial can be considered good cause for the Court’s refusal to allow live testimony under California Rule of Court 5.113 (5) which refers back to Family Code Section 217.
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