If you were to walk into my house and go into the closet that adjoins the
master-bedroom you would find paperwork like bank statements, medical
bills, daycare statements, etc. I’m sure that many of you reading
this blog post would be able to say the same thing. These are the sort
of documents that we collect in our day to day lives, put them aside and
never really think about them unless there is a problem and we need to
double check whether a payment was made or something like that. Otherwise,
these pieces of paper are out of sight and out of mind.
On the other hand, if you are going through a
divorce this paperwork may become incredibly important when it comes to collecting
evidence. The part of divorce litigation that can be incredibly hard for
many participants to stomach is that at the end of the day the evidence
you utilize in a contested hearing or trial are often the day to day documentation
that we don’t think twice about. Documents such as those I mentioned
in the opening paragraph to this blog post could prove to be incredibly
useful for you or your spouse when attempting to prove a point to a judge.
The difficulty that
family law attorneys have, however, is finding a way to have this sort of information
presented in the context of a hearing and actually admitted into the record
for a judge to consider. For those of you who aren’t attorneys,
an entire semester of law school is comprised of a class called, “Evidence”
where law students are taught the “Rules of Evidence”- how
to present evidence in trials and just as important how the rules will
allow you as an attorney to have evidence admitted into the record.
Hearsay- what is it and why is it important to your family law case?
Hearsay is a pretty common term nowadays. At its core, the rule against
hearsay bars any witness from testifying to what he or she heard another
person say. Basically our legal system wants to keep you from retelling
what another person supposedly said while you are on the witness stand.
The issue is that while you had to take an oath promising to tell the
truth, a judge or jury cannot be certain of the veracity (truthfulness)
of this other person’s statement made outside of the courtroom.
However, as any first or second year law student could tell you, there
are a number of exceptions to the rule that bars hearsay statements from
being admitted into evidence. One of those exceptions deals with business
records and not oral testimony. As it happens, frequently in family law
cases an attorney will ask you (the client) for documents that may be
relevant to a temporary orders hearing or trial. Bank records showing
payments made or income earned, school records for your kids, that sort
of thing. The issue that we run into is that because the trustworthiness
and authenticity are in question the rule against hearsay would seem to
bar them unless we got the documents from the bank or school.
The Texas Rules of Evidence under Rule 806(6) allows for records to be
admitted into evidence that a client produces for an attorney as long
as the client has specific and personal knowledge of the information contained
in the documents. While the term “business records” clearly comes from documents that are utilized in a business capacity,
the law of Texas is that personal records count under this hearsay exception
as well. “Business” doesn’t even have to mean the records
need to come from a business, but rather “any and every kind of
regularly organized activity whether conducted for profit or not.”
Texas Rules of Evidence, Section 803(6).
What this means for your family law case
This is all good and well, but ultimately you as a father or mother care
about how these rules are going to impact your case that concerns your
son or daughter. The bottom line as I can tell is that if you keep good
records as a part of your adult life then your attorney should be able
to offer those records into evidence and have them admitted into the record.
A judge will look to a few factors when deciding whether or not a statement
or record should be admissible in this context:
- Whether you as a the person offering the record or statement has maintained
the document as in the regular course of your activities as a spouse or parent
- That you are relying upon the accuracy of the document
- That you are able to offer testimony that indicates that the documents
If you can check each of these boxes then the odds are favorable that you
can get those records admitted into evidence. The benefit to having documentary
evidence available is that while your testimony is critically important
in a hearing, it is always helpful to have additional evidence to add
clarity to what you are discussing.
This also highlights how critical it is to respond quickly and thoroughly
to your attorney’s requests for you to produce documents and records
that may be helpful as evidence in a trial or hearing. If you have hired
a lawyer or are considering whether or not to do so it is advisable to
begin collecting and organizing any documents you feel may be relevant
to your case now, rather than waiting until the last minute. Your attorney
needs time not only to prepare them for introduction during a hearing or
trial but to formulate a strategy to do so bearing in mind the rule against hearsay.
Questions on hearsay, documentary evidence or family law in general? Contact
the Law Office of Bryan Fagan
Family law is both art and science. Your attorney needs to be able to manage your
case, your expectations and also navigate the convoluted and complicated
waters of the Texas Rules of Evidence. The attorneys with the
Law Office of Bryan Fagan offer the sort of competent, trustworthy and experienced legal representation
that you need. To schedule a free of charge consultation with one of our
licensed family law attorneys please do not hesitate to
contact our office today.
If you want to know more about what you can do,
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Other Articles you may be interested in:
- Tips on giving in-court testimony in your divorce or child custody case,
- Tips on giving in-court testimony in your divorce or child custody case
- Tips on giving in-court testimony in your divorce or child custody case, Part Two
- Getting Ready for a Hearing On Temporary Custody Orders
- Child Custody Geographic Restrictions in Texas
- Geographic Restrictions in Child Visitation Orders in Texas
- The Dirty Trick of Moving Out of State with the Kids
- Can a Parent remove My Child from the state of Texas or from the County
or Country where I am living?
- Children's Passports and International Travel after Texas Divorce
- Child Custody Basics for Texas Parents Revisited
- Child Custody Basics in Texas
Law Office of Bryan Fagan | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
Divorce, it's important to speak with one of ourHouston, TX Child Divorce Lawyers right away to protect your rights.
Divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and