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  • Writer's pictureBrian R Boney

Hearsay rules make hearings difficult

Updated: May 26, 2023

Witnesses can't just repeat in court what others have told to you or written for you

Parties to a divorce often assume they will be able to easily have witnesses, including their children, testify at their divorce hearings. However, because of the Colorado Rules of Evidence and general rules of trial conduct, having your judge hear evidence from witnesses is not always as easy as it seems.

One of the most common difficulties in obtaining witness testimony is obtaining testimony from children of the divorcing parties. Abuse, alienation, neglect – providing evidence to the judge of these matters often can come only from the children being abused, alienated or neglected. The judge, however, is not going to allow minor children to be put in a position where they must testify for or against one of their parents and be subject to cross-examination. That makes anything your children may have told you hearsay.

Hearsay, as defined by Colorado Rule of Evidence 801, is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Such statements are inadmissible unless allowed by a number of specific exceptions or exemptions. This is one reason it’s important to hire an attorney to represent you if there is any dispute over custody of your children. Among the most common means of admitting children’s statements over a hearsay objection are statements made to a therapist or doctor, statements made while perceiving an event, and statements uttered while the children are in an excited state. Your attorney can provide guidance as to the particular circumstance and how it may get around the hearsay rule.

The best way of having children effectively testify to the Court is by having a child and family investigator or parental responsibilities evaluator appointed to your case. The appointed person, who has been trained to investigate the circumstances of the case as to what is in the children’s best interests, will interview the children involved and take into account what they have to say. The downside is such an investigation could add thousands of dollars to the cost of your case because the investigator must be paid.

Another common misconception many people have is that their witnesses can simply write a letter for the judge to read concerning different aspects of the case. This is not the case thanks to American court tradition, English Common Law, and Colorado Rule of Evidence 607, all of which allow a party to a divorce to cross examine an opponent’s witnesses. Because you can’t cross examine a piece of paper, you will likely have to have your witness appear at your hearing, or at least appear by telephone with the judge’s permission. If you intend to call witnesses, make sure they are prepared to appear in person at your hearing before counting on their testimony. You may even have to put them under subpoena to ensure their presence. People are often eager to testify if they think all they must do is write a letter, but that changes just as often once they realize they’ll have to give testimony on a witness stand and be subject to answering uncomfortable questions posed by the other party’s attorney.

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