RULES OF EVIDENCE IN FAMILY LAW

By George Shake, Partner, Duffee + Eitzen, LLP

and Marianne Howland, Partner, Duffee+ Eitzen, LLP

Family law litigation may be more focused on families and individual conduct related to families than other areas of law; however, we still must abide by the rules of evidence. No matter how necessary the information is, we still have to offer evidence during a hearing in accordance with the Texas Rules of Evidence.

Here are some common pieces of evidence that you may encounter, and we will briefly explain how to admit or keep out these pieces of evidence.

1. Child Custody Evaluations—In 2017 the Texas Legislature updated the Texas Family Code prohibits the court from admitting a child custody evaluation report into evidence unless it complies with the rules of evidence. This effectively means that there is no way to admit the entire child custody evaluation report unless you have the expert who conducted it there to testify about his/her opinions and recommendations and you admit it as part of his/her findings and recommendations or opposing counsel stipulates to its admittance. You cannot offer it as a standalone piece of evidence because it contains multiple hearsay statements. TFC §107.114(a).
2. There are a few ways to get a child’s hearsay statement admitted as evidence:
   1. Present sense impression. TRE 803(1).
   2. Excited utterance. TRE 803 (2).
   3. Not offered for the truth of the matter asserted. TRE 801(c).
   4. Outcry of abuse. TFC 104.006.
   5. Child Victim of Family Violence. TFC 84.006.
3. Business Records Affidavits—if you have filed a business records affidavit, the attached records are admissible, and the business records affidavit works as a hearsay exception, and it authenticates the records. TRE 803(6) & TRE 902(10). An Unsworn Declaration may be used in lieu of an affidavit. CPRC 132.
4. Third Party Business Records.  One party may incorporate the business records of another party and offer those records as evidence. TRE 803(6), TRE 902(10), Nat'l Health Resources Corp. v. TBF Fin. LLC, 429 S.W.3d 125, 130 (Tex. App.—Dallas 2014, no pet.); Castillon v. Morgan, No. 05-13-00872-CV, LEXIS 3640, at *14 (Tex. App.—Dallas, April 14, 2015, no pet.).
5. Transcripts - In order for testimony at a prior hearing or trial to be considered at a subsequent proceeding, the transcript of such testimony must be properly authenticated and entered into evidence. Briones v. Solomon, 769 S.W.2d 312, 319 (Tex. App.—San Antonio 1989, writ denied); Ex parte Turner, 478 S.W.2d 256, 258 (Tex. Civ. App.—Houston [1st Dist.] 1972, orig. proceeding). Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus Christi 1996, no writ).

Here are some common objections and how to deal with them:

1. Speaking objections/Counsel is testifying: A "speaking objection" is an objection that contains more information (often in the form of argument) than needed by the judge to sustain or overrule it. Many judges prohibit lawyers from using speaking objections, and sometimes even from stating the grounds for objections, because of the potential for influencing the jury. Bryant v. State, 282 S.W.3d 156, 172, n.10 (Tex. App.—Texarkana 2009, writ granted on other grounds). A simple way to deal with this is to ask the court to determine what opposing counsel’s legal objection is.
2. Relevance—pay attention to the testimony of opposing counsel’s witnesses and his/her questions for your witness. If the hearing is about an increase in child support, then the parent’s parenting decisions are not relevant. TRE 401-403
3. Leading—Generally, leading questions should not be used on direct examination, except when an attorney calls a hostile witness, and adverse party, or a witness identify with an adverse party. TRE 611(c). It is a pet peeve of most judges to object to leading questions more than a few times. It is almost impossible not ask somewhat leading questions when you have 20 minutes per side to put on your case. Leading questions are explicitly permitted during direct an examination to “develop” a witness’s testimony. TRE 611(c).
4. Assumes Facts Not in Evidence—this is commonly misused. This objection is best suited for when an attorney is conducting direct examination of his/her own witness. When the attorney asks their own witness questions based on facts that have not yet been entered into the record, then this objection can be made. However, a witness may be cross-examined on any relevant matter, including credibility, and there is no prerequisite that the matter already be admitted into evidence. TRE 611(b). Additionally, unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. TRE 705(a).
5. Misstates Testimony/Evidence—this is important because some attorneys will often misstate testimony. You will have to have a sharp memory to be able to prevail on this objection. The basis for this objection can be that the probative value of the evidence is substantially outweighed by a danger of unfair prejudice, confusing the issues, or that it is misleading. TRE 403. The basis can also be the rule of optional completeness if the proffered evidence leaves out substantive aspect. TRE 107.
6. Calls for a Narrative— It can produce irrelevant or otherwise inadmissible testimony before the court can receive an objection and rule on it. TRE 611(a), TRE 403
7. Speculation— An objection that a question calls for speculation means the question seeks an opinion outside the witness's personal knowledge, implicating Texas Rules of Evidence 602 and 701. Romero v. State, Cause No. No. 07-20-00049-CR, LEXIS 6086, at *4 (Tex. App.—Amarillo, July 29, 2021, no pet. h.) (mem. op.) To avoid asking questions which call for speculation from a witness, try asking your witness their opinion about the subject you’re asking about. E.g.: “In your opinion, why did Dad take the child out of school?”
8. Compound— In general, where a compound question creates confusion, a party may lodge an objection to the form of the question. In re Commitment of Gollihar, 224 S.W.3d 843, 850, n.6 (Tex. App.—Beaumont 2007, no pet.). The trial court is allowed, upon a party's objection, to control whether such questions are asked or answered. TRE 611(a).
9. Hearsay—remember your common hearsay exceptions: 1) statement of party opponent; 2) for purpose of diagnosis or treatment; 3) not offered for the truth of the matter asserted; 4) excited utterance; 5) present sense impression.
10. Premature objection – If an objection is premature, it does not preserve error. Correa v. General Motors Corp., 948 S.W.2d 515, 518 (Tex.App.—Corpus Christi 1997, no writ); Bushell v. Dean, 803 S.W.2d 711, 711–12 (Tex.1991). Generally, the objection must be made at the time the evidence is offered. MBank Dallas v. Sunbelt Mfg., 710 S.W.2d 633, 638 (Tex.App.—Dallas 1986, writ ref'd n.r.e.). For testimonial evidence, the objection must be made after the question is asked and before the witness answers. An objection made after the witness answers is timely in some situations, such as when the witness makes an objectionable answer to a proper question, the witness answers an objectionable question too quickly for the objection to be made, or the witness volunteers an objectionable statement. Your response to this objection is “premature objection.”
11. Best evidence - under TRE 1002, a party who chooses to prove the content of a writing, recording, or photograph must introduce the item itself unless its production is excused by statute or some other rule of evidence. However, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data under TRE 705. Additionally, an expert may base an opinion on facts or data, even if those facts and data are not admissible. TRE 703.   The other part of the Best Evidence Rule addresses the use of originals versus copies, and the use of summaries for voluminous information. They are both fairly straight forward rules.

When you adhere to the rules of evidence and know your proper objections and responses, you will appear prepared and you may even throw your opposing counsel off of his/her game, which is always a plus. The above are some common objections and ways to admit evidence that will help you in your efforts to get the necessary information in front of the judge and allow your client to tell his/her story.