Witnesses at a divorce or custody Hearing may or may not be a good idea. There are a number of factors to consider with witnesses.
What does the witness have to offer? Did they actually observe something to which they are going to testify? Was something said to them by the other party and the witness is going to testify to what was said to them? Did your child say something to the witness that you think the Judge should hear (like how the Child does not like being at mommy’s or daddy’s house because of that parent’s behavior).
Is the witness an “expert”, like an accountant who values a business or an appraiser for a marital home, or a Child and Family Investigator (CFI)? All of these questions pertain to whether the witness will be presenting “hearsay evidence”. Hearsay evidence is not allowed, except for very specific and rare exceptions. That means the witness will not be able to testify.
What Can a Witness Offer?
“What does the witness have to offer?” is likely the most important question one asks. Most people going through a divorce or custody case believe they have “witnesses” to events that occurred—like domestic violence or child neglect or what was said about the other party or a witness to crazy behavior by one of the parties in the case.
However, most of the time the witness only has “hearsay” evidence—and hearsay evidence is prohibited. Just because someone told their witness about domestic violence, or the witness saw the bruises, does not mean the witness can testify to domestic violence had caused the bruises or who committed the domestic violence. Far more effective is the testimony of the victim and the photos the victim took of their bruises.
Most difficult, is when a witness wants to testify about what a child told them about the other parent. Maybe the child told the witness about problems with a parent or about a preference for one parent over the other. However, all of what the child told the witness is hearsay evidence.
This is the case even if the witness is a close relative like a grandparent or the witness is loved and trusted by the child and the child was being honest about what they were saying. It doesn’t matter. It is hearsay evidence.
What if the witness is going to testify about someone’s good character? Many divorce and child custody litigants believe they need “character witnesses” to defend against allegations from the other side. Rarely, though, are such witnesses needed, and they are often irrelevant to prove something occurred. Facts presented regarding something like domestic violence or child neglect or wasting of money is the evidence the Court needs—not someone telling the Court they believe you are a good person and would not do something bad.
In any event, the Court knows you would not choose someone who would testify they have seen sketchy or questionable behavior from you—because you have chosen the witness to tell the Court of your exemplary behavior.
If the witness is an “expert”, you probably want to present that witness. If an appraisal or valuation of a business or a parenting matter, etc. has been determined by an “expert”, that testimony will very likely not be hearsay and will very likely be necessary for whatever you plan to present. Just be certain you have sufficient time to present the witness since experts tend to take an excessive amount of time which will deprive you of other matters you want to be presented to the Court.
Presenting Evidence Without Risks
Is there another way to present the evidence you want without a witness? Most times, (other than “expert” testimony) the answer is “yes”. Eliminating a witness saves a lot of uncertainty. More times than not, a neighbor or friend who says they will be a witness fails to show up on the day of the Hearing because they are concerned about retaliation from the other side or cannot miss work. Not having a witness means far less coordination to know specifically what that person is going to say (and being certain it is not hearsay) and have that person appear by video or at Court at the designated time.
Most importantly, eliminating the use of a witness eliminates risk. No matter what someone tells you they will say in Court, you cannot control what may come out. You may be overlooking something the witness knows that will be bad for you if it comes out. You may underestimate the ability of the opposing party or attorney to cross-examine the witness or you may be misinterpreting what the witness told you. The witness may become confused or maybe too one-sided rather than testifying to facts observed or experienced. This all dilutes the testimony you thought was in your favor—and actually helps the other side.
Time It Takes To Present a Witness
Finally, a very common reason to not have a witness at a Hearing is that there will be insufficient time to present your case and present a witness. Especially today, Courts are extremely limited in the time they allow for Hearings. A Temporary Orders Hearing will usually allow 25-30 minutes total per side. That means you will have to testify to everything (incomes of the parties, parenting issues, spousal maintenance needs, and child support, maybe who remains in the marital home while the divorce is pending, etc.) yet still leave enough time for cross-examination of the other side.
It is impossible to do, yet happens every day and is a consequence of going to Court. A Final Orders Hearing or Motion Hearing will often allow more time per side, but that time is still limited and almost never enough.
Contact Jeanne Wilson Today
In any event, for a family law case, the Court wants to hear from you and the other spouse or parent. You are the most important person to tell the Judge what you want and why you want it. So, the next time you are considering a witness for your divorce or custody case, consider whether you can present enough evidence to make your case without a witness. Contact The Law Office of Jeanne M. Wilson and Associates, P.C today to start the consultation process.