For over 30 years, California Superior Courts have generally barred live testimony from the Courtroom in family law proceedings pursuant to the “Riefler/Stevenot rule” [Marriage of Reifler (1974) 39 CA3d 479 and Marriage of Stevenot (1984) 154 Cal.App.3d 1051] which allowed Judges to decide cases solely on the basis of written declarations. While procedurally convenient, it often excluded vital evidence from being heard.
All this changed as a result of the landmark Elkins decision [Elkins v. Superior Court, (2007) 41 Cal.4th 1337], in which the California Supreme Court Chief Justice held that there is a basic right to present live testimony in Family Court. “When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency…A party’s opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court,” Elkins stated.
The Elkins decision was codified in California Family Code Section 217, (amended 1/1/2011) which states:
217. (a) At a hearing on any order to show cause or notice of
motion brought pursuant to this code, absent a stipulation of the
parties or a finding of good cause pursuant to subdivision (b), the
court shall receive any live, competent testimony that is relevant
and within the scope of the hearing and the court may ask questions
of the parties.
(b) In appropriate cases, a court may make a finding of good cause
to refuse to receive live testimony and shall state its reasons for
the finding on the record or in writing. The Judicial Council shall,
by January 1, 2012, adopt a statewide rule of court regarding the
factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other
than the parties shall, prior to the hearing, file and serve a
witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court
may, on request, grant a brief continuance and may make appropriate
temporary orders pending the continued hearing.
As a result, San Diego County has changed its local rule 5.5.8(H), which outlined strict guideliness for requesting live testimony. It now essentially restates CFC §217:
H. Limitations on Evidence/Oral Testimony. If any party wishes to present oral testimony, written declarations must still be filed in a timely manner. The written declarations must be the direct testimony of the declarant. Written notice of the intent to present oral testimony must be served on the opposing party at least five court days before the scheduled hearing. The notice must state the name[s] of the intended witness[es] and the subject matter of the witness[es]’ testimony. Failure to give the required notice will generally result in a denial of the request for oral testimony.