Guide to Presenting Evidence in Family Court

• The role of evidence in family court
• Evidence rules
• Writings
• Authenticating evidence
• Filing and serving evidence
• How to introduce evidence during proceedings
• Tips for success
• Criteria for admissible evidence in family court
• Rules about photographs
• Objecting to a writing

Most people don't expect rules like California's Evidence Code to apply in family law. The fact is, it often does. Even when standing before a judge who takes an informal approach (i.e., they allow evidence to be considered without meeting all legal criteria), general knowledge of the rules of evidence can provide a legal advantage in your divorce or other family law action.

Why? Well, many judges review the evidence (out-of-court statements, school records, agreements, police reports, financial records, property titles, proofs of payment, social media posts, photos, and so on) without a proper foundation unless the opposing litigant or lawyer objects.

The role of evidence in family court

Evidence plays a crucial role in family court, as it helps inform judges’ decision-making. The way evidence is submitted and presented can significantly influence case outcomes.

Key facts about court evidence:

• Evidence must be directly related to the issues being discussed. It must make a fact more or less probable than it would be without the evidence.
• Only evidence that complies with legal rules and standards is admissible in court. “Evidence” can include documents, testimonies, electronic communications, and expert opinions.
• Hearsay rule: Generally, hearsay (statements made outside of court presented to prove the truth of the matter asserted) is not admissible.
• Best evidence rule: The original version (not a copy) of a piece of evidence, such as a document, is required unless a valid exception applies. 
• Evidence must be authenticated. See more on this below.
• Certain communications, such as those between lawyer and client, are privileged and can’t be used as evidence.
• Both parties are required to exchange relevant information and documents before trial (called “discovery”). This process helps ensure that both sides have access to the evidence needed to present their cases.

Evidence rules

If an objection is legal, it becomes the opposing litigant's job to find an evidence "exception" or explain to the court why the objection is improper. However, if you can't do this, the evidence comes into play whether you think it's fair or not. Another reason to follow the evidence rules is to create a "clear record." In other words, while your family law judge may be a bit lax when it comes to the Evidence Code, an appellate judge may not. If you don't object to the introduction of evidence, improper conduct, or illegal statements, you lose the ability to challenge that behavior. This is really important if your matter proceeds to an appeal. (An appeal is when someone applies to a higher court for the reversal of a decision made by a lower court.)

In this article, we highlight important evidence rules everyone should know before they walk into a courtroom.

Social media evidence rules

If you want to use a statement made via text message or online messages or chats (such as direct Twitter messages, Facebook messenger, or Google Hangouts), save and print the entire thread. It may potentially be used as an exhibit in court via a declaration or your own testimony.

Illegal eavesdropping

In family law, you may not submit unlawfully obtained recordings or wiretapping. This is considered an unlawful intrusion into privacy.

What if the evidence seems irrelevant?

If the opposing party introduces evidence you believe is irrelevant, speak up. Evidence must be considered "relevant" for the court to admit it over objection. Many litigants try to introduce evidence of their spouse's affairs or other bad behavior. However, unless it proves or disproves a disputed fact, it can be excluded.

Additionally, the court may exclude evidence if the possibility of prejudice outweighs the probative value. For example, your ex's drug or alcohol use may be excluded if the only issue at hand is the division of property. However, the evidence may come into play if the issue at hand is physical custody of the children. An objection to irrelevant evidence might sound like this: "Objection: Relevance. Even if what they say is true, it has no bearing on the issue before the court." Or this: "Objection: Relevance. The testimony is centered around a fact that is not in dispute."

What are writings?

When lawyers refer to "writings," they're talking about a host of documentation types: photographs, emails, letters, words, pictures, and such. These documents can be crucial to a family law case. Perhaps you have bank statements proving you gave financial assistance when your spouse says you didn't. Perhaps you have a photograph of your ex drinking and partying when they said they were sober. Maybe you have an email from your spouse expressing their intent to end the relationship and live separately.

All of the above can be relevant to child custody, property division, date of separation, or child/spousal support actions. Additionally, if you catch your ex in a lie under "the penalty of perjury," their behavior could certainly help your case. To get these "writings" into evidence over objection, you must authenticate them in one of the following ways:

• Establish a chain of custody: In short, this means you must show a record of all the people (a "chain of custody") who maintained unbroken control over the writing or video.
• Prove that your writing or video represents what it allegedly portrays: In other words, your item must back up your claim.
• Prove that your writing or video assists the court in finding the truth: This means your writing helps establish a fact necessary to prove your case (instead of misleading the court).

Authenticating evidence

Authentication involves proving that the evidence is genuine and relevant to the case. The process varies depending on the type of evidence being presented, but here are the general steps.

Steps to validate evidence

1.  Identify the evidence and how it relates to the case.
2.  Establish a chain of custody: Demonstrate how the evidence has been handled and preserved from the time it was collected to its presentation in court.
3.  Witness testimony: Have someone with firsthand knowledge explain the evidence’s authenticity.
4.  Expert testimony (optional): In some cases, an expert may be needed to verify the authenticity of evidence.
5.  Ensure that the evidence meets the criteria for admissibility, including relevance, reliability, and lack of prejudice (see more below).

Examples of authenticating evidence

• Bank statements: A bank representative or a custodian of records can testify that the bank statements are genuine.
• Emails: The recipient or sender can testify about the email exchange. Metadata can also be used to confirm the date and time the emails were sent.
• Social media posts: A screenshot alone is insufficient. Metadata, testimony from the account holder, or an expert witness may be needed to authenticate social media posts.
• Photographs: The photographer or someone present when the photograph was taken can testify about its accuracy.
• Personal belongings: The owner or someone familiar with the item can verify its authenticity.

Filing and serving evidence

Properly filing and serving evidence in family court is crucial for its acceptance during your case. Below are detailed instructions on how and when to file evidence and guidelines for serving evidence to opposing parties.

1. Gather and organize evidence

Ensure all evidence is clearly labeled and organized. Create an evidence list or index to keep track of all items.

2. Prepare evidence for filing

Make copies of all documents, digital files, and physical items. Ensure all documents are legible and digital files are accessible. For physical items, take photographs and describe them in writing.

3. Follow court rules and procedures

Different courts may have specific rules regarding the filing of evidence. Check the local court rules and guidelines. Some evidence may need to be accompanied by specific forms or affidavits. Ensure all necessary forms are completed.

4. Timing matters

Evidence must typically be filed before a specified pre-trial deadline. Check the court's scheduling order or pre-trial instructions. If new evidence emerges shortly before the trial, notify the court immediately and follow any emergency filing procedures.

5. Filing evidence with the court

Many courts accept electronic filings. Upload the evidence via the court's electronic filing system (e-filing). If e-filing is not available, submit physical copies of the evidence to the court clerk. Ensure you have extra copies for your records and for serving the opposing party. Obtain confirmation that the court has received your filed evidence. This could be a timestamped copy or an electronic receipt.

Guidelines for serving evidence to opposing parties

• Ensure you have copies of all evidence you plan to present. Organize the evidence in the same manner as filed with the court.
• Serve evidence well in advance of the trial to allow the opposing party sufficient time to review and respond. This is usually outlined in pre-trial orders.
• Adhere to any court-ordered deadlines for serving evidence.
• Methods of service include (1) Personal service by physically delivering the evidence to the opposing party or their attorney. Obtain a signed receipt as proof of service. (2) Certified mail with return receipt requested to ensure proof of delivery. (3) Electronic service: If the opposing party agrees or if the court permits, email the evidence. 
• File an affidavit of service with the court, detailing when, how, and to whom the evidence was served.
• Keep copies of receipts or confirmations of delivery.
• Notice of evidence: Include a cover letter or notice of evidence detailing what is being served and how it relates to the case. Provide an index or list of all evidence items being served.

How to introduce evidence during proceedings

1. Lay the foundation

• Provide context for the evidence.
• Explain what the evidence is, how it was obtained, and why it is relevant.

2. Witness testimony

• Call a witness to testify about the evidence (one item at a time).
• Ask the witness to identify the evidence and confirm its authenticity.

3. Mark the evidence

• Have the evidence marked by the court clerk. This typically involves assigning an exhibit number or letter to the item.
• Request the judge’s permission to mark the evidence.

4. Show the evidence to opposing counsel

• Provide a copy of the evidence to the opposing counsel for review.
• Allow them to examine the evidence before it is introduced to the court.

5. Introduce the evidence

• Say to the judge: “Your Honor, I would like to introduce [describe the evidence] as Exhibit [number/letter].”
• The judge will then ask the opposing counsel if they have any objections.

6. Respond to any objections

• Be prepared to address and respond to any objections.
• If the objection is overruled, proceed with presenting the evidence. If sustained, address the judge’s concerns or present alternative evidence.

7. Present the evidence

• Once admitted, present the evidence to the court.
• For documents or digital files, highlight key sections or points.
• For physical items, ensure they are visible to the judge and opposing counsel.

8. Explain the evidence

• Describe the evidence’s significance and how it supports your case.
• Use visual aids if necessary to clarify complex information.

Tips: Presenting evidence in court

Here are some strategies for clear communication and tips for how to introduce evidence during proceedings.

Be organized

• Have all evidence clearly labeled and organized in a logical order.
• Create an evidence list or index to quickly locate each item.

Use plain, concise, respectful language

• Avoid legal jargon and complex terminology when possible.
• Explain the relevance and significance of the evidence in simple, straightforward terms.
• Focus on the key points and avoid unnecessary details.
• Present your evidence clearly and succinctly to maintain the court’s attention.
• Speak clearly, confidently, and respectfully.
• Address the judge and opposing counsel appropriately.

Practice

• Rehearse presenting your evidence to ensure a smooth delivery.
• Anticipate possible objections and prepare responses.

Criteria for admissible evidence in family court

Check with your specific court to determine all its rules on presenting evidence. These criteria ensure that the evidence presented is relevant, reliable, and fair. These are the key criteria for admissible evidence in family court:

1. Relevance

Definition: Evidence must be directly related to the case and help prove or disprove a fact in question.

Application: The evidence should have a logical connection to the issues being decided, such as custody, support, or property division.

2. Materiality

Definition: The evidence must be capable of having a substantial impact on the outcome of the case.

Application: Evidence should affect the determination of major issues, not trivial or unrelated matters.

3. Competence

Definition: Evidence must come from a reliable source and be legally acceptable.

Application: Witnesses must have firsthand knowledge of the events they describe, and documents must be original and unaltered.

4. Foundation

Definition: A proper foundation must show that the evidence is true and relevant.

Application: The party presenting the evidence must explain its origin, how it was obtained, and why it is relevant. 

5. Authenticity

Definition: The evidence must be proven to be what it claims to be.

Application: For example, a photograph must be shown to accurately depict the scene it purports to show, and a document must be verified as an original or a true copy.

6. Hearsay rule (and exceptions)

Definition: Hearsay (an out-of-court statement offered to prove the truth of the matter asserted) is generally inadmissible unless it falls under an exception.

Application: Exceptions include statements made under the belief of impending death, business records, and statements against interest, among others.

7. Best evidence rule

Definition: The original document must be produced when the contents of that document are being disputed.

Application: If the content is in question, the original must be provided – not a copy or a description.

8. Probative vs. prejudicial

Definition: The probative value of the evidence (its ability to prove something important) must outweigh any prejudicial effect (potential to sway the judge unfairly).

Application: Highly emotional evidence that aims to trigger the judge’s feelings without adding substantial proof may not be admissible.

9. Expert testimony

Definition: Experts can testify on matters within their expertise if their testimony will help the court understand the evidence or determine a fact.

Application: An expert in child psychology might testify regarding the impact of a living arrangement on a child’s well-being.

10. Chain of custody

Definition: A documented chain of custody must show that physical evidence was collected, handled, and preserved properly.

Application: Forensic evidence like drug tests must show a clear chain from collection to analysis to ensure its integrity.

11. Privilege

Definition: Certain communications are privileged and cannot be used as evidence.

Application: Communications between spouses, attorney-client communications, and doctor-patient communications are typically privileged.

Rules about photographs

If you represent yourself and want to show a photograph as evidence, provide the following information:

• Who took the photograph and how you know who took it
• When the photograph was taken and how you know this
• The identities of the people in the photo
• What the photo purports to show and its accuracy (For example, a photo of your husband snowboarding when he said he was too sick to work)

Objecting to a writing

What happens if the opposing party introduces a writing you believe to be prejudicial to your case? If you know the proper objection, you may be able to get it excluded from the evidence. (That is, the judge excludes the writing from their decision-making process.) Here are some examples of objections to writings:

• Not properly authenticated: Did your ex introduce an email without a date? Did they fail to include the entire thread?
• No personal knowledge: Is the opposing party testifying about an event they did not witness?
• Hearsay: Are written or verbal statements made by someone other than a testifying witness offered as truth? (For example, "Her sister told me she's never home with the kids.")
• Ambiguous or misleading: Are you being asked a question about a document or video that doesn't make sense? Was the question designed to elicit a response that clouds the truth?
• Irrelevant: Is the writing relevant to the issue at hand?
• Privileged: Has a document between you and your lawyer or a medical record between you and your doctor been improperly presented in court? As a litigant, you enjoy several privileges. However, if you don't object to the sharing of privileged information right away, you could waive the privilege. The offending document, along with testimony and other offending documents, could then be admitted to the court. If this happens, you will want to object that the information is "attorney/client privileged."

Evidence is tricky, even for experienced attorneys. But it's not rocket science, and it can certainly be learned. A good attorney will alert you to the evidence-related issues you may face and help you strategize ways to overcome objections and prove your points. At Hello Divorce, we can help you navigate your divorce case so you can present the most important evidence to your judge.