The short answer is Yes, but that comes with some caveats.
A recent case, In re Marriage of George and Deamon (May 17, 2019) 35 Cal.App.5th 476, 247 Cal.Rptr.3d 420, addressed some of those caveats. This post will touch on the issues raised in that case and some other general information related to the presentation of testimony in family law hearings.
Historically Family law cases have always been somewhat of a hybrid. While traditional bench trials often do take place in a Family law case, what is most common is law and motion practice. What that means is that a hearing is set by virtue of any party filing a Request for Order (“RFO”). When the hearing is set in San Diego, it is scheduled for 20-40 minutes and set for the same time as up to 5-10 other cases. Family law departments have extremely impacted calendars so no one should appear at the regular set hearing and expect to receive more time then the designated 20-40 minute matter.
Having such limited time presents some obvious obstacles, including the presentation of evidence during such a short time frame. The rules of evidence have specific requirements as it relates to the Court receiving testimony, documentary evidence, videos, audio, etc. Some of the most common requirements include laying a proper foundation for evidence, authenticating evidence, avoiding any hearsay unless it falls within an exception. A 20-40 minute hearing dimply does not provide the opportunity to address each of those requirements. Therefore, it has become common, and approved, practice that matter set for a regular hearing be heard solely on written declarations, as opposed to live testimony. The legal authority permitting as much is California Code of Civil Procedure Section 2009. This section of the code has been discussed in case law, confirming its applicability to family law matters.
But what happens when someone wants to present testimony? Or cross examine the opposing party based on what is in their declaration? Or enter evidence into the record? After the often confusion surrounding when a party has a right to present live testimony in a family law matter, legislature passed Family Code 217 to address the issue. Family Code Section 217 provides that the Court should receive live testimony unless it has good cause not to or the parties have agreed not to present testimony. But a hearing for live testimony is not automatic, it must be requested and will almost certainly require a new hearing date set that can accommodate the amount of time needed for such a hearing.
This is where we turn back to the In re Marriage of George and Deamon case. This case came on appeal from an order in one of our family law departments of the Vista courthouse. In this case Husband had filed an RFO against Wife seeking the entry of a judgment as well as sanctions. Husband resides in Japan and was represented by an attorney and therefore did not appear in person at the hearing. During the hearing Wife requested to present live testimony, objected to the written declarations being considered by the Court, and made hearsay objections. The Trial Court denied Wife’s request and ultimately ruled in favor of Husband.
Wife appealed the Trial Court order, contending she was entitled to present live testimony per Family Code Section 217. The Appellate Court disagreed. The Appellate Court found that although a party is entitled to present live testimony, that right can be defeated if the Trial Court finds there is good cause to do so and/or the proper procedures are not followed. In this case the Appellate Court found that Wife failed to follow proper procedures by not providing a witness list and therefore providing no advanced notice of the need to be personally present to present testimony. The Appellate Court found that Wife took no procedural steps to present live testimony and therefore affirmed the Trial Court’s order.
The lesson to be learned here is that if you wish you present testimony in your matter, make sure you follow all the necessary procedural requirements and provide advanced notice to the other party. If you rely on the hope that the Judge will grant the request the day of the hearing, you may not like the result.
