Evidentiary Hearings Defined
An evidentiary hearing is one where the parties present sworn testimony to the court and/or the judge determines what facts were proven based on documentary evidence – i.e., admitting an original piece of evidence into the record and allowing the court to make findings of fact based on what it has been presented with by the two parties. In an evidentiary hearing, a sworn witness – usually one of the parties, but it could be a third-party witness or even witnesses from a neutral third-party source, such as a doctor, an accountant, etc. – comes in and presents their testimony to the Court under penalty of perjury. "Under penalty of perjury" means that if the party or the witness lies, they could be charged with perjury and possibly serve a jail sentence for lying under oath. Along with sworn oral testimony, and sometimes in lieu of it, the parties may present documentary evidence to the court for inclusion in the record. Documentary evidence is literally documents that prove – or disprove, sometimes – something in the court proceeding. Documentary evidence can include, but is not limited to, actual mail sent between the parties, invoices, letters, pictures, videos, or other tangible or intangible media. A party wishes to use documentary evidence, they must present a witness to authenticate the document – in other words, you cannot just tell the Judge "the bank gave me this statement that shows that the other party took $5 , 000 out of the account without my knowledge," you actually have to bring the person who wrote the statement in to testify under oath that they wrote that document and that it is indeed an original work that was not "doctored" in any way by you or anyone else. At an evidentiary hearing, the court is usually not interested in a lot of legal arguments between the parties and their attorneys, but rather what actually happened between the parties that made them resort to the court system to solve certain problems. For that reason, members of the judiciary want to hear evidence and view documentary evidence to make a determination of what is true or not true in a family law case. When it comes to a contested hearing, even when the parties have a mediator helping them, if it appears that the parties cannot reach a deal, the family law attorney for the client who is advocate-advocate them will have 15 days to submit a Motion to Set for an Evidentiary Hearing. The Court will then set the case for a hearing and each party will have an opportunity to present their sides to the Judge. If that party has witnesses, they need to bring those witnesses to the hearing. Sometimes the court will hear the motion and make a ruling within the same hearing, but many times the Judge will take the matter under submission and issue their order at a later date.
When is an Evidentiary Hearing Required?
In family court, evidentiary hearings are often necessary to determine the outcome of certain issues. These hearings are required when there is dispute over certain facts in a case. Family courts only resolve disputes of fact after considering evidence. In other words, in order for a family court to make a decision, there must be something for the court to consider. In some situations, the issues may be resolved in conferences or through motions. Often times though, the issues cannot be resolved without a hearing.
Most family court issues require a hearing. Since the majority of the issues require a hearing, family court judges deal almost exclusively with hearings. The conduct informal conferences to settle a case that can be done without expensive hearings. For example, if the parties can agree to a visitation schedule, the judge will approve it. There is no need for a hearing in these circumstances. Where there is disagreement on custody or visitation, there is no choice. The judge must resolve that issue by considering testimony and evidence.
Custody and visitation clearly require an evidentiary hearing because of the disagreements that parents have about their children. In North Carolina custody cases, there are two types of custody: legal and physical. Legal custody is the right to make decisions about the children. This means that the parties can share legal custody or one can have sole legal custody. Physical custody is who the children live with at a given time. This is often broken down into primary physical custody and secondary physical custody. Primary physical custody of the children is where the children spend the majority of their time. Secondary custody is where the children spend less time, but still have significant contact with that parent.
Like custody, alimony or post-separation support also requires a hearing. Even if the parties agree about the amount and duration of support, the court still has to confirm the existence of the need and ability to pay. When the parties do not agree on how much alimony should be paid, the court must conduct a hearing to determine the reasonable amount and duration of alimony or post-separation support. Before the court can award alimony, the court must first determine that: A hearing is always required to terminate alimony. If the paying spouse is no longer providing support, the other party needs to demonstrate to the court the income of the obligor spouse. A full evidentiary hearing is required to show to the court that the alimony should be terminated based on the spouse’s income.
Child support is also heard in front of the court. These hearings are usually short and inexpensive. Unlike alimony, child support is computed based on the North Carolina Child Support Guidelines. Where there is a dispute on income, the court can set a separate hearing to evaluate the parties’ true income. However, this is not usually necessary. Unless there is a major dispute over the income, a simple hearing can usually be completed quickly and cheaply.
Evidentiary hearings are nearly universally required in family law cases. The court will usually require a hearing before making a decision on an issue. If you are involved in a family law case, you will likely have to deal with an evidentiary hearing.
Evidentiary Hearing Process
An evidentiary hearing is broken down into roughly 4-5 steps: 1) introduction of the witness, 2) direct examination of the witness, 3) cross-examination of the witness and 4) closing arguments in brief and summary fashion to remind the Court about the issues before the Court. As an initial matter, all witnesses are sworn under oath. After the individual is sworn, the party who called the witness then provides direct examination of the witness. During direct, the examination asks open-ended questions. Open-ended questions are non-leading, meaning that the witness answers based on his/her memory and statement of facts only. Leading questions are allowed on cross-examination because the Court expects the party who is cross-examining the witness to state facts or circumstances and then ask the witness to confirm or deny his, her or their truth. The lawyer who is asking the questions is in all likelihood going to be presenting the testimony of additional witnesses at a later time, including on rebuttal, so he or she is not limited to the facts and circumstances for just one witness. With that said, the lawyer should explore all avenues of the case during direct, and should move through the direct in fairly short order-typically 10-15 minutes per witness. Any longer than that takes longer to present the testimony to the Court if several witnesses are testifying, and can result in the burden shifting to the wrong party if they have a heavier burden of proof. Most trials are done on a bench trial basis, meaning that the Judge decides the pertinent issues based on the evidence presented at trial. In some cases, the parties agree to a Guardian ad Litem or Parenting Coordinator, whose testimony is taken separately, and does not involve a live presentation in Court. Rather, that individual testifies in his/her report. At the conclusion, each party will present closing arguments to summarize the factual elements considered and the legal position of the party and the relief sought. After that, the Judge will make a decision on the matter, whether it is a substantive motion or a Final Trial.
Evidentiary Hearing Preparation
Many people want to know how you prepare for an evidentiary hearing. Evidentiary hearing is simply a fancy word for a trial before a Judge. To prepare for the evidentiary hearing, you will want to put together your evidence well in advance of your Court date. You must serve your evidence with your trial brief on the other side 7 days ahead of your court date. This means if you are you going to have your hearing on Monday, you must serve your trial brief and evidence in the mail to the other party by close of business the Monday before! It is even more difficult getting doctors and clerks to sign things the week before Court. So the sooner you start gathering the evidence the better!
Court only allows you to enter evidence that has been provided to the other person so keeping this in mind will help you determine what will be included. Evidence comes in the form of affidavits (sworn statements from people) and documents. The stuff you have to gather includes but is not limited to: bills, checks, accounts, Schedule 6’s, banking information, medical statements, school information, photographs, and receipts. If you are uncertain of any piece of evidence, ask your lawyer. All evidence must be submitted under oath, so you will need to obtain this from the person who has it in their possession. After you gather all of your evidence, you will need to review it with your attorney and discuss what they will be asked on the stand. The trial brief will also need to be prepared and reviewed with your attorney prior to the Court date. The most important thing to understand about these hearings is that they are not like on TV. Court does not badger you and you are not going to get a miracle question, which tears down the other side’s case. The reason Court does not do this is because judges are not allowed to act as advocates or intervening attorneys. They have strict rules they must follow and steps they must take during the trial. The judge will inform you of these rules on the day of trial. He will also give you about 10-15 minutes to present your entire case, unless you request a longer time. The Judge will ask you pertinent questions after each witness testifies and will also ask you questions when it is your turn to testify. If you do not understand his questions you should ask him to clarify the question.
The key is to listen carefully to everything he says and answer only what is asked. The Judge will stop a person who goes off on a tangent or starts talking about evidence not before him. He is only allowed to hear the evidence and concerns that have been specified in the pleadings. If you are focused on the trial brief and your evidence the judge will be able to get through his questions quickly and move through the trial.
Evidentiary Hearing Outcomes
The Potential Outcomes of an evidentiary hearing include:
- Orders on the merits of the allegations or requests before the judge;
- a settlement agreement;
- a failure to prove the case, leading to dismissal of the issue and likely awarding of attorneys’ fees;
- a scheduling order, including a date for another submission to the judge for a full trial.
Any combination of these may happen as well during the evidentiary hearing or at another time after all the testimony has been heard.
At times, if something happens during the date of the evidentiary hearing that causes the judge to have to decide something immediately, a decision will be made on the spot. Most likely, the judge will come across some issue throughout the hearing such as change of address or a request for a referral for mediation or parenting classes that the judge can decide without hearing any witness testimony.
Alternatively , the judge may refer the parties to a mediator to try to settle the case after which, if no settlement is reached, the case will be returned to the judge for determination on the merits of the case.
Consider the situation where a restraining order is issued against one of the parties and said party is then fired from his or her job due to their past actions and requested by the employer to leave a secure facility. Under these facts, an immediate decision would have to be made by the judge to issue the order as requested or to deny the restraining order and let the party return to work at the facility.
Finally, the last possible outcome is a delay in deciding the case for an extended period of time that could trigger another date for the submission of another factual hearing or a new settlement hearing date. If the case is very involved and many witnesses are called to testify, there may be limited time for the judge to hear all the testimony on the same day.
Representation and Legal Support
Given the high stakes involved in evidentiary hearings, having a skilled family law attorney at your side is invaluable. Your attorney will help you gather the evidence beforehand and then present it in an effective way during the hearing. An attorney will also help you in several other ways during the hearing.
For instance, your lawyer will usually be present when the judge appoints a parenting evaluator or custody mediator and will be able to present your case to the expert, including the evidence you have gathered and any arguments that could persuade the evaluator or mediator to offer a ruling in your favor. Your attorney will also stay in contact with the evaluator or mediator after the appointment, to ensure that any additional information provided by either party is included in the report.
Your attorney will also work to set or maintain temporary orders related to a parenting plan or child support order while the case proceeds. Your attorney will keep track of the evidence in your case and use it to file the right motions at the right times throughout your case, as well as to respond to any motions filed by the other side.
During the evidentiary hearing itself, your attorney will make sure that the proper evidence is gathered and introduced during the hearing. Your attorney will present your arguments regarding the evidence, as will the other party. At the close of the hearing, your attorney will ask the judge to make a ruling on the types of child-related issues being considered. In addition, your attorney will ask the judge to issue written orders once the hearing is over, memorializing the rulings made in the case, on both an interim and a permanent basis.
Finally, your attorney will represent you in court on any appeals or post-hearing proceedings that may arise in the future.
Myths about Evidentiary Hearing
Evidentiary hearings are often shrouded in misconceptions that can cause undue anxiety and confusion for litigants unfamiliar with the family law process. One common myth is that evidentiary hearings are akin to full-blown trial proceedings. In reality, they are simply mini-trials designed to resolve specific threshold issues or other factual disputes without the need for a costly and time-consuming full trial. Instead of having to go through a ten-day trial, a careful and experienced judge can often resolve a particular factual issue in an hour or two through a simple evidentiary hearing. Absent a serious factual dispute between the parties about a material issue, evidentiary hearings are the exception, not the rule. The fact that an issue is to be resolved via an evidentiary hearing should provide comfort to the litigants that there is no intractable issue of fact that is preventing the case from settling or that there is no legitimate factual dispute about an issue preventing the parties from moving forward or receiving relief.
A related misconception is that because evidentiary hearings are mini-trials, there is no room for negotiation and no possibility of settlement. On the contrary, many evidentiary hearings provide parties will the room to negotiate because the end is in sight. In the context of child support modification, where parties have stark disagreements about income, the primary purpose of the evidentiary hearing is to resolve the income issue so that the Department of Revenue can enter the correct modified child support award. What is also often clear is that once the income issue is resolved, the child support amount is often clear cut as well. In these situations, all that is left for the parties to do is negotiate over parenting time and the other issues remaining, once the income issue is resolved. For litigants in these cases, the bottom line is that this is a relatively painless process that, even if not able to settle , allows both parties to move on as they now know the correct child support amount going forward.
Still another misconception is that an evidentiary hearing is a lengthy and burdensome process for litigants. While not every evidentiary hearing is ultra-short, many of these hearings are simple mini-trials with few witnesses. Most often, only one or two witnesses testify and their testimony is typically brief. For instance, if the hearing is on income, the Court only needs to hear from one or two parties regarding their earnings. Given that these hearings often last 30 minutes to 1 hour, the litigants are often on their way sooner than they thought and with their issue resolved. While every situation is different and the Court may require additional evidence, in many cases, a short evidentiary hearing is exactly what the case needs in order to move forward.
Contrary to what your mother may have told you about "never bringing up religion or politics in polite conversation," it is never a bad idea to bring them up in court. Due to the recent strong pushback by the US Supreme Court when it comes to the religion vs. state conflict, chaplains, clergy and other religious persons are more important than ever to bring to court for evidentiary hearings on behalf of their congregants. It is not uncommon in percentage cases that there is some dispute about how to get the parties’ incomes to the proper amount given their religious restrictions on income or their unusual tax situations. There are many situations in which the parties have religious or personal objections to paying tax, or that one party is very devout but the other is not. In these situations, to the extent that the religion supports the parties’ positions, bringing in the pastor, rabbi, or other clergy to testify on your behalf regarding the religious position on the issue – in the eyes of your faith – is more powerful than almost any amount of extrinsic evidence. In income tax cases, the parent could even testify about his or her own unique situation as an individual with unusual tax constraints that doesn’t reflect his or her true disposable income.
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