A recent legislative change affecting family law cases was brought about by the 2007 California Supreme Court ruling in Elkins v. Superior Court, which held that reducing live testimony in family law cases deprives parties of due process protection. In response to this ruling, the California legislature enacted a new law regarding the introduction of live testimony in family law cases. The new law was codified in §217 of the California Family Law Code.
Absent a stipulation of the parties or a finding of good cause, Section 217 requires that upon an order to show cause or notice of a motion, the court should receive any relevant “live, competent testimony” within the scope of any hearing. In addition, §217 authorizes the court to “ask questions of the parties.” The court “may make a finding of good cause to refuse to receive live testimony” in appropriate cases. In such cases, the court must state the reasons for its denial on the record or in writing. Section 217 also requires the Judicial Council to “adopt a statewide ruling of court regarding the factors a court shall consider in making a finding of good cause.”
Additionally, the new legislation requires that a party seeking to present live testimony from nonparty witnesses must “file and serve a witness list with a brief description of the anticipated testimony” prior to the date of the hearing. On request, the court may grant a brief continuance if the list is not served prior to the hearing.
As California family law is constantly changing, it is very important to consult a qualified family law attorney when encountering a divorce or child custody issues. For more information about California family law, please contact our attorneys at Lonich Patton Erlich Policastri for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Cal. Family Law Monthly, Vol. 2010; No. 11.