Some of the most common subjects covered by family law in the legal field include divorce, child custody, and child support. Additionally, paternity, adoption, and emancipation are a few other issues that are settled in family law courts. Occasionally a family law case will require a witness, such as in cases involving domestic abuse. Witnesses could provide key points of information that may support a party’s claims or legal arguments. For instance, in a domestic abuse case, a witness’s testimony may be what’s needed in order to support a victim’s claim that the abuse actually occurred.
Each state has their own set of rules regarding who may serve as a witness in family law cases. Generally, the following people may act as witness in family court:
- The victims themselves;
- Defendants testifying on their own behalf;
- Anyone wishing to testify on behalf of the plaintiff;
- Impartial eyewitnesses to important events that are related to the family law hearing; or
- Any other person with information that may be useful in court.
Another circumstance in which a witness may be needed is during custody hearings. In custody hearings, witnesses can provide general support for one parent to win custody over the other, or confirm previously disclosed information related to that parent’s case. Additionally, expert witnesses may sometimes be called into family court, if necessary. An expert witness may be used when there is a need for scientific, technical, or specialized testimony. Essentially, if the witness’s testimony will help the jury understand the evidence or resolve a disputed issue, they may be brought in.
Importantly, the names, addresses, and contact information of witnesses must be obtained and provided to the parties before trial. This may be done through depositions, subpoenas, or pretrial court orders. Generally, information regarding witnesses must be provided at least 30 days before the trial date, but the time can vary by state.
A witness’s contribution can make or break a case. Specifically in family court cases, witness testimony may be the only source of evidence for a particular issue. This is unlike criminal cases where the prosecution is often able to collect large amounts of evidence. Since witnesses have such a large responsibility in family court cases, they should be mindful of the following:
- Before testifying, the witness should review the event, incident, or situation in question in order to refresh their memory;
- It is imperative that the witness always be truthful when responding to questioning, and avoids inserting their own opinion;
- The witness should avoid making distracting or unnecessary comments, movements, or mannerisms. Additionally, witnesses should avoid divulging more information than is being asked of them;
- The witness should go over vital facts of the case in detail while avoiding memorized or rehearsed responses. If the witness is perceived as unreliable or untrustworthy, it could have a negative impact on their testimony. Witnesses should also not look to their attorney for coaching or cues;
- The witness should listen carefully to questioning in order to provide a truthful and accurate response, as opposed to responding reflexively and potentially incorrectly;
- If the judge or an attorney raises an objection, it is important that the witness stops speaking and waits for the objection to be resolved before proceeding with their testimony; and
- The witness should be polite and practice good courtroom etiquette.
Some examples of good courtroom etiquette includes the following:
- Dress appropriately, specifically in formal business attire;
- Address the judge as “your honor” when you need to address the judge; and
- Do not bring any food, drinks, or any noise producing electronics into the courtroom.
Most importantly, the witness should remain as calm and relaxed as possible throughout the process. Again, the witness has a big responsibility in that their testimony could influence the outcome of the case. They must appear to be reliable and provide truthful, accurate testimony and evidence in order to resolve the case.
It is important to note that the evidence provided by a witness is not always admissible. The judge maintains the right to determine that the evidence provided by a witness is not reliable and should not be considered when making their decision. In general, a judge will use the following as a guide to determine if the provided evidence should be admitted or excluded:
- Is the evidence actually helpful to the judge and/or jury;
- Is the witness qualified to be providing evidence;
- Is the provided testimony based on sufficient facts or data;
- Has the testimony been provided as a result of reliable methods or principles; and
- Did the witness reliably apply the facts of the case?
The judge may exclude any evidence that would serve only to confuse the jury. Additionally, they judge may exclude provided evidence that would unfairly prejudice a particular party, or would be too time consuming to present to the jury.
The guidelines for witnesses in family court cases vary by state or jurisdiction. Thus, consulting with a well qualified and knowledgeable family lawyer is beneficial making sure you understand the guidelines in your area.
Importantly, as a witness you will not generally have to hire an attorney, as the attorney hired previously by the side you are testifying for will generally assist you in providing your testimony. Additionally, an experienced attorney will typically prep you before you testify at trial.