The Basics of an Evidentiary Hearing
Evidentiary hearings are generally held in family court after there are outstanding issues from a divorce or family matter that need to be addressed and there is a dispute as to what the facts are. When I say facts, I mean that there are facts in dispute as opposed to a legal question. For example, if there is already a child support order in place but one parent is seeking an increase in support, the judge will not hold an evidentiary hearing because there is no fact in issue (the income of the spouses is contained in a Case Information Statement). If however, that party wants an increase due to the other parent getting a promotion , there is now a fact in issue (the promotion) meaning that the judge may have to hold an evidentiary hearing to take testimony.
An evidentiary hearing is where the parties will testify under oath about their respective issues and the judge will act as the fact finder and make a ruling. At evidentiary hearings, the attorney who you hire will call witnesses and may present documents into evidence. After the record is made (meaning the attorney finished presenting their case), the judge will usually render a written decision. In some cases, depending on the issues, the judge will render an oral decision or ask for additional information from one or both parties to make a final decision.
When is an Evidentiary Hearing Necessary?
Evidence hearings in family court are necessary once the parties have presented the family court a trial worthy issue. The parties cannot likely agree on a particular issue, so that means the opposing party filed a responsive pleading showing that the other party is not entitled to what he or she is asking. The evidence hearing generally comes in to play when parties try to modify a previous order or ask the court to grant a motion for contempt.
When it comes to evidentiary hearings in family court, there’s no necessities for a hearing. However, the more robust or complex the issues of the case are, the more the court demands the parties to support their argument with evidence. If parties are going to prove custody modifications, parties need to show the judge evidence like transcripts from other hearings, a psychological evaluation and even a 20-page best interests of the child report. If either party can’t support their case with these kinds of evidence, a judge won’t look favorably on your case. The same is true for alimony arguments. If there’s no evidence or way to support your case, don’t ask. It’s as simple as that. If you can support yourself with evidence, an evidentiary hearing is necessary. The court needs to have time to review all of the evidence in advance so that the judge can effectively render your verdict. Most family court judges want to show the families and spouses the correct due diligence before passing a sentence.
Categories of Evidence
For effective decision-making by judges and magistrates, it is critical that they are presented with facts. A family law evidentiary hearing is the stage of litigation in which the parties actually have an opportunity to tell their side of the story and present those facts. While pleadings are filed in a case outlining the parties’ positions and what issues are in dispute, information in pleadings is limited to what the parties choose to include. Such information is typically not admissible as evidence. Instead, at an evidentiary hearing, the parties have the opportunity to present testimonial and documentary evidence from witnesses that establish the factual basis for the parties’ positions as set forth in pleading the issues into court.
Evidence can be presented at an evidentiary hearing by witnesses through testimony. Testimony is presented live at the hearing of the matter. Credibility of witnesses based on their demeanor and responsiveness to questions is always important and factual testimony must be given under oath.
There are numerous documentary sources of evidence that may be presented at an evidentiary hearing supported by testimony from witnesses. Documentary evidence is provided as "Exhibits" labeled "Plaintiff’s Exhibit," "Defendant’s Exhibit," etc. "Exhibits" are provided by both parties in the form of documents and other documentation (including photographs, videos, etc.). "Exhibits" can be presented and their authenticity established during testimony at the hearing. Many times, Exhibits are prepared and presented to the Court in Booklets containing tabbed pages with each Exhibit to make review of the Exhibits easier for the Court and other interested parties.
In addition to testimonial evidence presented by the parties, the Court is also always permitted to take evidence from experts. Expert evidence is that presented by a qualified expert witness. Qualified expert witnesses are typically mental health professionals such as licensed therapists and psychiatrists who have evaluated the parties in a case, accountants who can testify regarding income, or any other expert whose testimony relates to a specialized subject matter that assists the Court to reach a proper decision in a case.
Preparatory Measures for an Evidentiary Hearing
While the scope, purpose, and parameters of an evidentiary hearing can very greatly by the type of case and issue before the court, a notice of hearing by each side should also include a list of exhibits and witnesses. The party seeking the hearing should propose a date, time, location, and time expectation, to allow the other party sufficient time to prepare. With the exception of certain rules regarding child support cases, evidentiary hearings are often collaborative in nature and each party is expected to participate in discovery and witness preparation of their own case.
Discovery, including written discovery (interrogatories and requests for production), depositions, and requests for admission, should be used to frame the issues for the evidentiary hearing. While the rules of evidence may otherwise not apply to certain types of hearings, each party should be prepared to enter exhibits and witnesses that are responsive to the discovery requests served by the other party. Even in non-jury settings, where the rules as to discovery do not apply, and hearsay may be allowed, each party should still fully prepare and present their case as if the rules of evidence applied. Failure to do so may severely prejudice a party in the event of an appeal. Deposition testimony may also be used in lieu of live testimony upon notice. In most jurisdictions, deposition discovery will be allowed to be presented at a hearing in lieu of live testimony. This is one method by which a party can use the other side’s witnesses and experts to establish their case in certain circumstances. Evidence may also be taken in camera on certain issues as to the best interests of children. See Va. Code 20-124.3, or for protective orders on domestic violence related issues. See Va. Code 16.1-279.1(D). Notice to appear, late notices, and discovery not responded to in a timely manner will often be included in the issues raised by the other party in a request for continuance or dismissal. The presumptions in these circumstances are often negative. A party will not typically be granted a continuation unless there is a showing of good cause and lack of good faith in not providing the discovery in the first instance. Similarly, failure to respond to discovery, provide witnesses and presumptions of prejudice will normally be weighed by the Judge in the context of a motion to dismiss or entry of default judgment. Again, preparation of the case will benefit a litigant in these circumstances.
The Function of the Judges and Attorneys
The attorneys presenting, or examining the witnesses, will be given the opportunity to present evidence and try to prove his or her own written position or to disprove some of the opposing party’s written statement. After each issue is addressed, the attorneys will most likely present closing arguments. They may ask the judge to do something specific based on the evidence presented.
The judge will evaluate the admissibility of evidence and the credibility of each witness. Judges are generally considered the gate keepers of the court. While sometimes it can be difficult to predict what evidence a specific judge will find persuasive , attorneys develop strategies to present evidence more or less compelling depending on what is known about the judge. While decisions ultimately rely on the judge’s decision, the decision may be influenced by the attorney’s ability to point out inconsistencies in testimony (with the exception of inconsistency in expert testimony), emphasize points where experts agree, or highlight strong or weak points in evidence.
The Results of an Evidentiary Hearing
Family Code section 217 addresses the possible outcomes of an evidentiary hearing.
(a) If the court finds by clear and convincing evidence at the hearing that a party has willfully disobeyed a specific provision of a child custody or visitation order, the court shall make written findings on the record setting forth all of the following:
- (1) The conduct of the party in willfully disobeying the specific provision of the custody or visitation order.
- (2) The extent to which the party’s willful disobedience of the custody or visitation order was due to the misconduct of the other party or other circumstances for which the other party should not be fully responsible.
- (3) Whether the child suffered any significant detrimental impact as a result of the party’s willful disobedience of the order.
(b) If the court makes the findings required by subdivision (a), the court shall do one or more of the following:
- (1) Order correction of the disobedience of the order.
- (2) Enforce the custody or visitation order by contempt proceedings.
- (3) Impose sanctions, including monetary sanctions, except that no monetary sanction shall exceed five thousand dollars ($5,000).
- (4) Order the compensation of reasonable expenses, including attorney’s fees, to the other party.
- (5) Attachment of earnings or other civil penalties or remedies consistent with sections 1214 and 1218 of the Code of Civil Procedure.
(c) If the court does not make the findings required by subdivision (a), the court may order correction of the disobedience of the order. The court may also use other enforcement remedies unless, at the time of the hearing, the parties enter into a stipulation for the conduct of either party and the stipulation is accepted by the court.
Appeals and Disputes
Challenging or appealing the result of an evidentiary hearing may vary based on the issue. For example, if the Primary Physical Custody Determination at issue is made without a previous Finding of Contempt, the De Novo Standard of review will likely be applied on appeal (or a Challenge to the Evidentiary Hearing). However, if the issue involved is one that implies a previous finding of contempt, such as a violation of an Order or Agreement, the substantial or clear and convincing standard of review may apply. A party may be limited by the various rules and/or statutes pertaining to appealing an order or judgment in the appropriate case. For example, if a party did not present any evidence at a hearing , and a judgment was entered against that party subsequent to the hearing, a party may be limited to appealing that judgment under Rule 59 Motion for New Trial or Rule 60 Motion for Relief from Judgment. If a court denies a Motion for Reconsideration, challenging the same issue that was litigated in the hearing, the standard of review on appeal may be an issue for the appellate court. That is due to whether that motion has been preserved by appealing it with a proper record. If an appellate court cannot make a decision based on the record on appeal, it may be hard pressed to review the issue. It will probably not provide appellate relief unless the appellate court finds that the trial court exceeded its authority or abused its discretion as a matter of law.