Published by Ben Beveridge | December 3, 2023 | Firm News

Family law litigation delves into the intricacies of relationships and individual conduct within families. While the focus may be on the personal aspects of these cases, the legal system mandates adherence to rules, especially those concerning evidence. In Texas family law, even the most crucial information must be presented in accordance with the Texas Rules of Evidence during hearings.

Common Pieces of Evidence Encountered in Family Law Cases

1. Child Custody Evaluations: The Texas Family Code mandates strict adherence to rules when admitting child custody evaluation reports. The entire report can only be admitted if presented by the expert who conducted it. Hearsay statements within the report pose a challenge, but exceptions include present sense impression, excited utterance, and specific situations defined by the Texas Family Code.
2. Business Records Affidavits: Properly filed business records affidavits make attached records admissible as evidence, serving as a hearsay exception. This includes unsworn declarations in lieu of affidavits.
3. Transcripts: To consider testimony from a prior hearing or trial in a subsequent proceeding, the transcript must be properly authenticated and entered into evidence.

Common Objections and Strategies to Address Them

1. Speaking Objections/Counsel Testifying: Judges often disapprove of speaking objections. To address this, request the court to determine the legal objection without unnecessary argument.
2. Relevance: Pay attention to opposing counsel’s questions and witnesses’ testimony, ensuring relevance to the case’s focus.
3. Leading Questions: While generally discouraged on direct examination, leading questions are permitted in specific situations, such as when dealing with a hostile witness.
4. Assumes Facts Not in Evidence: Object when an attorney bases questions on facts not yet in the record. Experts, however, can state opinions without detailing underlying facts initially.
5. Misstates Testimony/Evidence: Object if opposing counsel misstates testimony, citing the potential for unfair prejudice, confusion, or misleading information.
6. Calls for a Narrative: Object when questions lead to irrelevant or inadmissible testimony before a proper objection is raised.
7. Speculation: Object when a question seeks an opinion beyond the witness’s personal knowledge.
8. Compound Questions: Lodge an objection if a compound question creates confusion, allowing the trial court to control whether such questions are asked or answered.
9. Hearsay: Recognize common hearsay exceptions, including statements of a party opponent, statements for diagnosis or treatment, and statements not offered for the truth of the matter asserted.
10. Premature Objection: Ensure objections are timely and made at the moment evidence is offered.
11. Best Evidence: Adhere to the Best Evidence Rule, presenting the original item unless excused by statute or another rule of evidence. Experts may state opinions without initially testifying to underlying facts.

The Role of Evidence in Family Law Cases

In family law cases, evidence assumes various forms, including documents, witness testimonies, and multimedia. From financial records and emails to expert opinions and social media posts, evidence serves as the foundation for legal arguments.

The primary goal of evidence in family law is to establish facts and credibility. This is particularly crucial in matters like child custody disputes, where the court relies on evidence to determine the best interests of the child.

Evidence acts as a buffer against emotional bias, ensuring that decisions are based on objective information. It provides a factual foundation for arguments, making legal proceedings more compelling and persuasive.

From child custody evaluations to business records affidavits, understanding the nuances of evidence in family law cases is vital. By adhering to the rules of evidence and strategically handling objections, attorneys can present a well-constructed case that stands on a solid foundation of credible information. Whether it’s a divorce, child custody dispute, or enforcement of support, the quality of evidence presented can make all the difference in achieving a fair and just outcome.