Your best friend is going through a divorce. The relationship has been rocky for a long time, and you really hate it for the kids, so you offer to help in any way you can.
A few weeks after the case is filed, the legal assistant of your friend’s attorney contacts you. You are asked questions about the relationship, habits of both parties, parenting issues, discipline of the children – some really personal questions. You begin to wish you had never offered to get involved. Nevertheless, you tell the legal assistant you are willing to help, but you would prefer to write a “statement” to the judge.
Written Statements are Inadmissible
Unfortunately, written statements by witnesses are not admissible as evidence in a contested hearing. Even sworn statements, such as affidavits, are not admissible. Generally, witnesses must come to the courtroom to testify, including being “sworn in” (stating that you promise to tell the truth). In some cases, if a witness is unavailable for the trial date, the attorneys will take the deposition of the witness and either videotape the testimony (to be played at trial) or read the transcript of the witness testimony at the deposition in Court. In either case, your friend’s attorney AND the attorney for the spouse will have the opportunity to ask you questions under oath. This preserves the integrity of the “statement” you are giving. Likewise, both parties to the divorce have the right to be present at the deposition or in court to listen to your testimony.
Testimony must be based on Personal Knowledge
Witnesses in divorce cases may be asked to testify about personal observations that would help the judge make a fair ruling about any contested issue in the suit, such as property the parties own, custody, visitation, child support, fault in the break-up of the marriage. You may be asked to testify about the good qualities of your friend (that would be easy), but you may also be asked about the less flattering qualities of either spouse.
You will not be allowed to testify about what someone else told you. This is called “hearsay”. Hearsay evidence is not considered credible because the witness did not personally see or hear what happened. If while testifying, you say “then she said…”, the spouse’s attorney may stand and say “Objection, hearsay”, and you may be asked to only testify about your personal knowledge on the issue.
Teachers and School Counselors
If you are a teacher or a school counselor, you will likely to have the opportunity to testify in a family law case during your career. The case could be an initial divorce or a suit seeking modification of the terms of a prior order. Teachers are considered one of the most reliable witnesses in cases involving children. Judges uniformly put significant weight in a teacher’s observations regarding children’s issues because teachers spend so much time with the children (sometimes even more than parents). Teachers have the opportunity to observe the child’s behaviors, as well as the parents’ interactions with the child.
School counselors have opportunities to meet with children about challenges faced at home, which could affect their performance at school. When this occurs, judges will want to hear counselors’ observations and will sometimes even allow their opinions to come into evidence.
Some witnesses come to the hearing voluntarily; however, you may be served with a subpoena ordering you to appear at a certain time, date and location to testify at the hearing. It may be helpful to provide the subpoena to your employer to verify that you were required to be present at the hearing, and your time off from work will likely be excused.
Courtroom Attire and Rules
When you go to the courthouse to testify, you will want to wear business attire –shorts are not allowed in most courtrooms. A bailiff may remind attendees prior to the hearing that all cell phones must be turned off. Talking during the hearing is not allowed. Generally courtrooms are “open” to the public so there could be people there to listen to the proceeding that are not witnesses. If you are a witness, either attorney may “invoke the rule”. The rule means that all witnesses will be asked to stand at the beginning of the hearing, and the judge or bailiff will swear them in and instruct them not to discuss the case while they wait in the hall before testifying. Witnesses are usually not allowed to stay in the courtroom and listen to the witnesses who testify before them so that each witness testimony is independent and does not “build” on the prior witness’ statements.
As uncomfortable as you may feel about testifying in your friend’s case, it is often the best evidence of the facts that the judge needs to hear in order to make a fair ruling and protect the best interest of the children.