Be Prepared to Testify in California Family Law Proceedings

Governor Schwarzenegger just signed into law the biggest change we have seen in years regarding how litigated family law matters will be handled.

Effective January 1, 2011, Family Code section 217 provides that the family courts are now required to listen to live, competent, and relevant testimony unless the parties agree otherwise or the judge finds good cause to refuse live testimony.  The current law (until January 1, 2011) is that in many family law courts, live testimony has become a thing of the past.  Since 1974 when In re Marriage of Reifler was decided, most proceedings have been decided based upon the written statements of the parties and their witnesses.  When a proceeding took place on written declarations, it became known as a Reiflerized hearing.  If a party wanted live testimony, they had to request the court to allow the testimony.   Effective January 1, 2011, the law will completely reverse.  Now, testimony will occur unless the parties agree to the contrary or the judge refuses the live testimony.

Why the change in the law?  In 2007 the landmark California Supreme Court case of Elkins v. Superior Court (2007) 41 Cal.4th 1337 held that the lack of live testimony deprives family law litigants of due process protections.  A basic constitutional right! The California legislature acted in response to Elkins to statutorily address the Supreme Court’s ruling.  As a result, the legislature has found that over 70% of litigants in family law are unrepresented – they do not have a lawyer. The unrepresented individuals have always found the rules and procedures difficult to navigate.  As a result, the legislature has now finally found that these rules and procedures are in fact a barrier to litigants getting their day in court because the unrepresented person often fails to follow the rules to have their matter fairly determined.  Live testimony therefore allows litigants to tell their story to the court while not getting bogged down in the procedures which currently exist.

Although live trials are back in family law, we predict this does not mean everyone just gets to “tell their story”.  The testimony must still be legally competent, relevant and not subject to other evidentiary objections.  The courts are going to be very busy with live testimony and, with the California budget crisis and its impact on the courts, expect judges to be very efficient and strict in their presiding over the live testimony.  Having a family law attorney whom you trust and can guide you in the presentation of your testimony is critical.

As this new law develops and gets implemented, expect future blog posts on this subject.