So You Want to Present Witnesses at Your Hearing…Part 1

Using Witnesses in Court Hearings

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 valued 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 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 having 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 custody litigants believe they need “character witnesses” to defend against allegations from the other side. Rarely, though, are such witnesses needed and most often they are 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 inordinate amount of time which will deprive you of other matters you want presented to the Court.

Click here to read part 2 of “So You Want to Present Witnesses at Your Hearing…”!