Kelly Woodruff of the California Appellate Law Group On Appeals: Despite Supreme Court Rulings, a Challenge to the Denial of an Evidentiary Hearing in a Family Law Matter Can Easily, but Unintentionally, Be Forfeited
Trial courts are pressed for time, especially these days with the backlog they face due to the pandemic, and often prefer to resolve matters on the papers where they can. But if your client really needs an evidentiary hearing to prove their case, or disprove the opponent's case, and the trial court isn't playing ball, then taking care to preserve the issue correctly for appeal is essential, says California Appellate Law Group's Kelly Woodruff.
September 16, 2021 at 09:00 AM
5 minute read
I have fielded several calls in recent months from family law practitioners looking to appeal a family law ruling on the basis that their client was denied their ability to present live testimony at a critical evidentiary hearing. The Supreme Court established what seemed to be a clear due process requirement for these types of hearings in 2007's Elkins v. Superior Court, and the Legislature expanded and codified that ruling in Family Code §217, which says that trial courts "shall" receive "live testimony" that is within the scope of an evidentiary hearing.
The California Rules of Court also specify that family law trial courts must receive live testimony where relevant and cannot resolve a disputed issue through summary adjudication or demurrer.
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