Can I get a witness? How the Rules of Evidence can torpedo your family law case

I know it’s summertime, but let’s pull out the old barrister wig, channel our inner Blackstone, and talk about evidence in family law.

In most family law cases, there’s what you know … and then there’s what you can prove.    Proof comes in the form of admissible evidence.  Admissibility is determined by the Texas Rules of Evidence.  Family court judges apply the rules.

This is why so many seemingly simple divorce or custody hearings turn sour; lawyers objecting to testimony or offers of documents and judges making rulings based on their interpretation of the evidence rules.  In court, you’ll hear some of the following objections:
can you prove it—Schreier Housewirth

  • Leading
  • Relevance
  • Hearsay
  • Narrative
  • Privilege
  • Speculation
  • Unresponsive
  • Lack of personal knowledge
  • Compound

With all these rules and their subjective and inconsistent interpretations by family court judges, it’s easy to see how what you know may not be what you can prove.

Let’s take a common example.  Texas Rule of Evidence 401 “Test for Relevant Evidence” states:

Evidence is relevant if:

a.  it has any tendency to make a fact more or less probable than it would be without the evidence; and,

b.  the fact is of consequence in determining the action.

So, evidence may be probative of a fact, e.g., the witness saw Jimmy walking down the road with a fish on a hook may tend to prove Jimmy caught a fish.  But the evidence may not have anything to do with the case at hand, e.g., does Jimmy catching a fish really matter in a child custody hearing?

You’d think there would be some uniformity in the application of these rules, but it’s not.  It’s more like calling a foul in basketball, a strike in baseball, or holding in football; it’s all on the fly.

At Schreier & Housewirth family law, we know family law evidence and help our clients prepare for their day in court.  For over 25 years, Tarrant county divorce and custody clients have turned to our law firm when proof is key and outcomes are critical.