What the heck is an Evidentiary Hearing?!

A significant portion of our clients came to us because they were told that their motion in Family Court was being set for an evidentiary hearing at the request of the other party or other party’s attorney. And nearly all of them have no idea what an evidentiary hearing is and why they are being forced to attend one. We hope to shed some light on this topic.

“Family law litigants should not be subjected to second-class status or deprived of access to justice.” – Chief Justice Ronald George, Jeffrey Elkins v. Superior Court (2007).

The Elkins decision in 2007 changed the game. Prior to the decision, family law litigants did not always have the opportunity to present live testimony during family court proceedings. The effect was, as Elkins notes, that it unfairly deprived family law litigants with the same access to justice that other civil litigants were provided.

Notably, the Elkins case resulted in Family Code §217, which mandated that a court shall receive live testimony at a hearing on any order to show cause or notice of motion.

Family Code §217 states:

(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing.  The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.  If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing.

Plain English?

In practice, a party will file an order to show cause or notice of motion. At or before the hearing, any party to the matter may request that the court receive live testimony; in other words, an evidentiary hearing.

The Court may, however, make a finding of good cause to refuse. Those factors are found in California Rules of Court Rule 5.113(b):

In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217: (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. (c) Findings If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing. The court is required to state only those factors on which the finding of good cause is based.

An evidentiary hearing provides both parties an opportunity to present evidence that may otherwise be lost in the shuffle. For example, a witness’s demeanor during examination can provide the Judge with additional, and sometimes valuable, insight into the credibility of the evidence being offered.

What Should You Expect?

An evidentiary hearing is similar to the type of trial you see on television, except without a jury. The moving party presents their case through live testimony of witnesses. The opposing party has an opportunity to cross-examine those witnesses and also call witnesses of their own after the moving party concludes their direct examination. The Judge may also elicit testimony by directing questions to the parties and other witnesses.

To find out more about Family Code §217, or to speak to a family law attorney about your case, contact The Zarin Law Firm today.