Evidence in Family Court

Our entire judicial system is founded on the presentation of competing evidence to prove or disprove a claim. It is especially critical to introduce strong evidence in family court cases, which are decided by judges and not juries. Family law cases involve a lot of “he said/she said” contradictions, so persuasive evidence can bolster a case and significantly impact the outcome.

Arizona Rules of Evidence

The Arizona Rules of Evidence are modeled after the Federal Rules of Evidence and generally control all civil proceedings in Arizona state courts. However, because this article focuses on evidence in family court, it is important to note that these rules do not strictly apply to family court proceedings unless specifically invoked by either party via a timely filed Rule 2 notice.

Types of Evidence

The term evidence broadly includes all “proof” a litigant presents at trial to prove all material facts and persuade the judge to rule in his or her favor. In family court, it commonly includes:

  • text messages or e-mails between or involving either party;
  • photographs;
  • financial documents like paystubs, tax returns, bank and financial account statements, credit card statements, ledgers, invoices, receipts, etc;
  • witness testimony;
  • audio or video recordings;
  • property records;
  • court-appointed advisor, parenting conference, or custody evaluation reports; and
  • relevant medical records, including substance abuse records or drug testing results

How to Obtain Evidence

Per Rule 49, the parties are required to disclose to each other much of the information and evidence relevant to family law cases. Additional information can be obtained through issuance of discovery requests — formal, written requests for specific information which served upon the other party. Different types of discovery requests are used depending on the litigant’s objective. Examples include interrogatories, requests for admission, requests for production, depositions, and the issuance of subpoenas. Litigants who use these discovery tools must comply with all applicable local and procedural rules and unless a valid objection exists, the other party must provide all of the information sought. If a party refuses to answer discovery requests without legal justification, he or she can be sanctioned by the family court. If you received discovery requests and you are not sure of your rights or obligations, please promptly consult with an experienced family law attorney because these matters can be time sensitive.

How to Admit Evidence

Once evidence is obtained, it still must be properly disclosed, marked, and presented at trial for admission. The family court can only consider evidence properly admitted at trial, so a mistake here can result in the exclusion of otherwise valid evidence. All litigants have an ongoing duty to timely disclose evidence, including names and contact information of witnesses, in advance of any scheduled trial. Generally, this information must be shared 30-60 days before trial, but litigants should always consult the family judge’s minute entries because some judges impose alternative or additional deadlines.

Evidence properly disclosed can be submitted to the judge’s assistant to be “marked” or inventoried for trial. This is another deadline that can be found in the minute entries, typically the order setting trial. Usually evidence must be submitted to the court around one week before trial. Litigants must follow all instructions to ensure the evidence is properly marked. You should also review the minute entries to determine if your assigned judge prefers a bench copy of exhibits. A bench copy is an additional copy of the exhibits, usually assembled in a binder for the judge’s convenience so that the judge can view evidence while it is being presented during trial.

At trial, some or all exhibits can be admitted by stipulation of the parties if the parties agree. If there is no evidentiary stipulation, a litigant must move to admit each exhibit during his or her case. This means the party or the party’s attorney should refer to each exhibit, identify the exhibit for the court, explain what each exhibit is and which fact(s) it proves. Experienced family law attorneys should have no problem with this, but for individuals without attorneys, always remember to move to admit exhibits or the exhibits will not be part of the evidence the judge can consider.

Common Objections to Evidence in Family Court

Even when the Arizona Rules of Evidence are not invoked, litigants can object to the admission of specific evidence or testimony. Family court is less formal than some other civil proceedings, so evidentiary objections may be articulated in a non-uniform way. Judges also retain great discretion to overrule evidentiary objections, even valid objections, though usually the judges will promise to “give the evidence the weight it deserves” when admission is contested.

In our experience, the three most common reasons for exclusion of particular evidence are: (1) improper disclosure; (2) irrelevance; or (3) the evidence is incomplete.

Remember, evidence must be disclosed according to all applicable rules and court orders. When evidence is untimely disclosed, it may deprive a party of a constitutional due process right to prepare a meaningful defense. This objection can result in exclusion of the evidence or postponement/continuance of trial and potentially sanctions to the party who failed to timely disclose the evidence.

Irrelevant evidence is evidence that does not relate to any material fact at issue in the particular case. An example could be if a spouse testifies or offers evidence concerning the other spouse’s infidelity to prove marital fault. Arizona is a no fault divorce state, so this evidence would not be relevant. However, if the spouse properly pleaded a claim of community waste and alleged that the adulterous spouse spent community funds on his or her affair, evidence of the infidelity would be relevant to the case.

The last common objection frequently results in the exclusion of otherwise admissible evidence in family court. When evidence is incomplete, like a text message conversation where a party seeks to admit only a section of the conversation without surrounding context or where specific messages are deleted, the evidence can be excluded. This also applies to video or audio recordings when a party wants to edit or condense the recording or play only a sample in court. Usually the entire recording needs to be played in order to be admitted as evidence because the other party has a right to confront or object to any portion of the recording, not just the portion played.