Rule 5.113.Live testimony

Family law hearings were once decided almost entirely on paper. Family Code section 217 changed that, and this rule puts the change into practice: at a hearing on any request for order under the Family Code, the court must receive live, competent, admissible testimony that is relevant and within the scope of the hearing — unless the parties stipulate otherwise or the court finds good cause not to.

Good cause is not at large. Beyond the rules of evidence, the court must consider six factors: whether a substantive matter is at issue, such as custody, visitation, parentage, child or spousal support, restraining orders, or the characterization, division, or temporary use of property or debt; whether material facts are in controversy; whether live testimony is needed to assess credibility; the parties’ right to question anyone who submits reports or information to the court; whether a party offering non-party testimony complied with the witness list requirement; and any other just and equitable factor.

A court that excludes live testimony must state its reasons on the record or in writing, and need state only the factors its finding rests on. Testimony from minor children carries additional protection — the court must follow the Evidence Code’s protective rules together with the statutory scheme and the children’s testimony rule on top of this one.

Two practical provisions round it out. Witness lists must be served with the request for order or the responsive papers, in the manner those papers are served; where none was served, the court may demand an offer of proof before a non-party testifies. And the court must consider whether a brief continuance is needed to let a litigant prepare to question the other side’s witnesses, making appropriate temporary orders if it grants one. The court may also question the parties and witnesses itself.