Family Law Trial and Evidence Practice Pointers

By Ashleigh Meyer Dunham and Sandra Eubank Gregory

Family law is full of emotion and drama mixed in with biased facts and evidentiary pitfalls. Whether you are in the midst of an original divorce or attempting to modify custody or alimony, it is important to understand the Rules of Evidence to effectively represent your client. In Alabama, family law cases are heard by bench trials only. Your entire case depends on your judge. The easiest way to help that judge help you is to understand the basics of evidence as it relates to family law cases.

Foundation and Authentication

The first step to presenting exhibits is laying the foundation. As a practitioner, you build suspense for the court by providing the court with why the evidence is important or relevant to the case. [1] Foundation is merely the threshold for getting evidence into the record. In fact, most foundational objections go more to the weight of the evidence than to its admissibility.[2]

Foundation includes authentication. In order to authenticate an exhibit, you must provide the court enough information to show that your evidence is what you are claiming it to be.[3] You can often achieve this by a witness who can attest to the authenticity of the exhibit by testifying as to their personal familiarity of it.[4] Examples of exhibits that are often used in family law cases are items such as photos of excessive alcohol use (i.e. a party passed out surrounded by liquor), photos of a nice home that is clean and organized, or photos of the children appearing happy and healthy when a parent is accused of abuse. Photographic evidence is heavily used since your client does not need to be present to authenticate the photograph but merely give testimony to substantiate what the photo depicts.[5] They do not have to be the photographer.[6] It is the other side’s responsibility cross examine your witness as to why the court should give that evidence less weight.

Self-authenticating documents[7] are very helpful. They save time by alleviating the need of lengthy authentication testimony. They allow you to quickly make a point before the court. Note that you still must overcome other evidentiary barriers such as hearsay–which will be discussed below.[8]

A growing trend in family law cases is the introduction of social media, email, text messages, and other electronic messaging mediums. The Alabama Court of Criminal Appeals has explained that circumstantial evidence is enough to admit electronic messages explaining that “the e-mail address, cell phone number, or screen name connected with the message, the content of the messages, facts included within the text, or style of writing; and metadata such as the document’s size, last modification date, or the computer IP address.”[9] In a custody modification appeal, the court of civil appeals explained that “it was important that there be evidence that the e-mails, instant messages, or text messages themselves contained factual information or references unique to the parties involved”[10]

Different courts handle text messages differently. The safest method to authenticate is to allow either the sender or recipient to authenticate the message through their testimony.[11] There are several apps that will download a text message into a format that makes it easier to show the range of dates in which the texts were sent, a transcript of the text messages, and the phone numbers used to communicate which show the basic information needed to authenticate so that you can focus on the communication rather than your foundation. Before you introduce the exhibit, have your witness explain why the exhibit is important and how you have provided the conversation for the court (i.e. a transcript or screenshot). Here are suggestions:

Emails:

Do you recognize this exhibit marked as Defendant’s X?

What is the date of the email?

What is the email address of the sender or the recipient?

How did you receive it?

Are there any personal markings that indicate who the sender was?

How do you know who the sender is? (Have the witness explain the circumstantial evidence they use to determine it was the sender they believe it to be, such as tone, follow-up conversations, routine communicating through this medium, actions that followed, etc.).

Text messages and instant messages

Do you know Jane Doe’s phone number? What is it?

Are you familiar with Jane Doe?

Do you communicate with her on a regular basis (have you in the past)? How?

When was this conversation?

[Show the witness the text]

Do you recognize this?

What is it?

How do you know it is Jane Doe?

What is the name listed?

How is she listed in your phone?

What is the phone number?

Is this a fair and accurate representation of the conversation?

Has this been altered in any way?

[Offer into evidence.]

Can you read me the conversation you had with Jane Doe?

Social media

Have you visited [social media platform]?

When it was visited?

How the site was accessed?

How do you know this is the website you’re referencing?[12]

Have you visited this site before?

[Provide screen shot was printed from website.]

What is the date and time that the screenshot was captured?

Is this what you witnessed when you went to this website?

Has it been altered or changed in any way since you first witnessed it?

Are you familiar with Jane Doe?

How do you know her?

Are you friends with her on social media?

What platforms?

Is it currently active?

Would you recognize it if I showed it to you?

Is this a fair and accurate representation of their page as you have seen on it [date]?

Does it appear altered in any way?

How do you know that this was sent by Jane Doe?

Hearsay

Because hearsay is generally not admissible in court proceedings, family law practitioners must understand that 1) the testimonial or documentary evidence is (or is not) hearsay, or that 2) the testimonial or documentary evidence falls (or does not fall) within an exception to the hearsay rule.[13] The hearsay rule is based upon the idea that unsworn out-of-court statements are to be excluded because they are unreliable and untrustworthy.[14] Hearsay may be a statement that is an oral assertion, a written assertion, or nonverbal conduct that is intended as an assertion.[15] Hearsay may also include a question as long as the question is an assertion.[16]

Family law cases include much testimony that can be characterized as “he said, she said.” Typically, your best evidence against the opposing party is their own words. Anything that the opposing party states can be used against them, whether it is through text message, social media, email, or a parenting app, and it comes in over a hearsay objection because it is a statement by a party opponent.[17] Another response to a hearsay objection as to your own client’s statements to others is it can be used to rehabilitate your client’s testimony if it is consistent and is offered to rebut a charge of recent fabrication or improper influence or motive.[18]

Hearsay presents the most problems when the case involves children. Most child custody cases involve hearsay evidence, particularly if the issue of child custody is contested. Whether the case involves an original divorce, a modification, or a contempt issue, our clients relay to us what other adults or children have said or done as the underlying basis for the action. In an original divorce proceeding, the courts must determine what is in the best interests of the child in determining an award of custody and/or visitation.[19] Even in a custody modification under Ex parte McLendon,[20] the courts have to determine if disrupting child’s physical placement is outweighed by the child’s best interest. Couple that with a general view that children should not be brought to courthouses to testify because giving such testimony could be emotionally damaging, even in the best of circumstances, what is a divorce and family law practitioner to do?

As noted, a party opponent’s statements are admissible; however, children are not parties to an original divorce action[21] or parties to a divorce modification.[22] Thus, statements made by children to either parent are hearsay and must be excluded unless the statements fall under one of the exceptions. One way to get a child’s statement into evidence is to argue that the statement is an “excited utterance:”[23] “[a] statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition.”[24] Three conditions must be met for the admission of the statement: 1) there must be a startling event or condition; 2) the occurrence of the event and the statement must be made close enough in time to indicate the declarant has not had time to fabricate; and 3) the statement must be spontaneous product of the occurrence operating on the visual, auditory, or other perspective sense of the speaker.[25] When there are allegations of physical or sexual abuse, note that the Alabama Supreme Court has held that for a child victim, in a criminal context, who made statements to her parents about being the victim of sexual abuse that occurred earlier in the evening, the statement, although not contemporaneously with the actual abuse, was made contemporaneously with the stress and excitement resulting from the abuse.[26]

Another common issue in custody proceedings is when a child complains of a physical ailment due to a custody or visitation arrangement. We hear this all of the time: “Suzie always says her head hurts when she has to visit with her mother.” Ordinarily, Suzie’s statements would be excluded as inadmissible hearsay. However, Suzie’s statements may fall under the exception under Rule 803(3) then existing mental emotional or physical condition.[27] This exception relates to “statement[s] of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)…”[28]

Divorce law practitioners also need to be cognizant of the hearsay exception in Rule 803(1) for a present sense impression, which is a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”[29] For example, Jack, who is the ex-wife’s neighbor, calls the ex-wife and states, “Suzie is running in the road barefoot, and I do not see your ex-husband at all.” You would first have to establish that the statement was made while Jack was perceiving the event, or immediately thereafter, and then the statement could come in under the Rule 803(1) exception to the hearsay rule.

Children’s statements made to their doctors for the purposes of medical diagnosis or treatment are also excepted from the hearsay rule.[30] Such statements describing medical history, or past or present symptoms, pain, or sensations or the inception or general cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. An example might be Suzie reporting to her doctor that the cause of the bump on her head was the fact that she was not wearing her helmet when she fell off her bicycle when she was visiting with her father.

Privileges

Children’s statements to their counselor or therapists, however, are not allowed into evidence under Rule 803(4) because of some very technical applications of the psychotherapist-patient privilege and exceptions for children.[31] The general rule is that a communication between psychotherapist and patient is afforded the same protection from disclosure as is afforded between an attorney and client.[32] When the patient is a child, the privilege belongs to the child and only the child may waive it, not a parent.[33] Note that Rule 503(d)(5) recognizes an exception to the psychotherapist-patient privilege in child custody cases in that there is no privilege when the mental state of a party is clearly at issue and proper resolution of the custody question requires disclosure.[34] However, a child is not considered to be a party to a custody modification action.[35]

Be mindful, however, that statements made by parties to a custody proceeding to her counselor are not immune from disclosure. The Advisory Committee’s Notes to Rule 503 seem to suggest that when a person is seeking custody of a child, her mental or emotional condition is at issue and, if so, testimony from counselors and/or counselors’ records are not protected by psychotherapist-patient privilege. Also, take note that one differentiating factor, in custody cases, is that unlike most other areas of the law, character evidence is generally allowed.[36] In fact, in some instances such as modification of custody proceedings, a party’s character may be at issue in the case.[37] Witnesses may testify to certain instances, conduct, reputation, or their opinion of the parties as their character is at the heart of the matter involved.[38]

Remember, your judge is human, too. Sometimes you receive a ruling on a “speaking objection” in which opposing counsel will simply explain their objection, but never give the basis for the actual objection. This term is also used when opposing counsel is attempting to use their objection to instruct the witness how to answer the question.[39] When that happens, and you need to preserve the case for your client, try requesting that your judge give her reason for sustaining the objection.[40] When preparing for trial, make sure to make a chart of your possible exhibits, any possible objections, and your responses to those objections.

Being prepared is key.

Endnotes

[1] Thomas A. Mauet, Trial Techniques, 178. (2010).
[2] Tidwell v. State, 496 So. 2d 109 (Ala. Crim. App. 1986).
[3] Ala. R. Evid. Rule 901.
[4] Id.
[5] Steven N. Peskind, The Family Law Trial Evidence Handbook 144-147, (2013).
[6] Id.
[7] See Ala. R. Evid. 902.
[8] Id. Committees Notes.
[9] Culp v. State, 178 So. 3d 378, 379, 2014 Ala. Crim. App. LEXIS 102, *1.
[10] Smith v. Smith, 196 So. 3d 1191, 1199, 2015 Ala. Civ. App. LEXIS 72, *18.
[11] Peskind, supra n. 5, at 159.
[12] At this point you will have the witness provide identifying information such as logos, photos, web address.
[13] Evidentiary Opportunities: Applicability of the Hearsay Rules in Child Custody Proceedings, Vol. 25, 2013 AAML 375.
[14] Charles W. Gamble, Terrence W. McCarthy, & Robert J. Goodwin, McElroy’s Alabama Evidence, § 242.01(1)(4th ed. 1991).
[15] Ala. R. Evid. 801(a).
[16] Peskind, supra n.5, at 61.
[17] Ala. R. Evid. Rule 801 (d).
[18] Id. at Rule 801 (d) (1) (B); see also Peskind, supra n.5, at 64-65.
[19] Peskind, supra n. 5, at 64-65.
[20] 455 So. 2d 863 (Ala. 1984).
[21] Cochran v. Cochran, 269 So.2d 884 (Ala. Civ. App. 1970), overruled on other grounds, citing Hall v. Hall, 192 So. 2d 727 (Ala. 1966).
[22] Jones v. McCoy, 150 So.3d 1974, 1081 (Ala. Civ. App. 2013), Ex parte Dr. Barbara Johnson, 219 So. 3d 655, (Ala. Civ. App. 2016).
[23] Ala. R. Evid. 803 (2).
[24] Id. at 803(2).
[25] McElroy’s Alabama Evidence, supra n. 13, § 265.01(1) at 1281.
[26] Ex parte C.L.Y. v. State of Alabama, 928 So. 2d 1069 (Ala. 2005).
[27] Ala. R. Evid. 803(3).
[28] Id. at 803(3).
[29] Id. at 803(1).
[30] Id. at 803(4).
[31] Ex parte Dr. Barbara Johnson, supra n. 21, 19 So. 3d at 657.
[32] Ala. Code 1975, § 34-26-2. The Alabama Rules of Evidence also recognize such privilege. See Rule 503, Ala. R. Evid.
[33] Ex parte T.O., 898 So. 2d 706, 711 (Ala. 2004).
[34] Ala. R. Evid. 503(d)(5).
[35] Jones vs. McCoy, supra n. 21.
[36] Ex parte Berryhill, 410 So. 2d 416, 419 (Ala. 1982).
[37] Peskind, supra n. 5, at 39-40.
[38] Ala. R. Evid. Rule 405.
[39] Law Information Institute, Speaking Objection, Aug. 1, 2020, https://www.law.cornell.edu/wex/speaking_objection.
[40] Peskind, supra n. 5, at 306.
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