In divorce and custody cases, a party often wants to provide testimony of witnesses. A party may wish to call someone who has witnessed a party’s parenting skills. Perhaps a witness was present during an instance of abuse or neglect. Witness testimony is one of the most common forms of evidence offered in these kinds of cases.
This article will discuss:
- What rules govern witness testimony?
- What are lay witnesses?
- What may lay witnesses testify about in divorce and custody cases?
- How does a party get a lay witness to testify?
- What are experienced witnesses?
- What may an experienced witness testify about in a divorce or custody case?
- How many witnesses should a party call?
- Are there witnesses in temporary matters hearings?
What rules govern witness testimony?
Witness testimony is governed by the Iowa Rules of Evidence, Iowa Court Rules Chapter 5. The rules of evidence provide two categories of witnesses: lay witnesses and experienced witnesses.
What are lay witnesses?
Lay witnesses are witnesses which are not testifying on an issue requiring some kind of focused knowledge. While lay witnesses can give opinions, the opinions are limited to those that are:
- Rationally based on the witness’s perception;
- Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
- Not based on scientific, technical, or other focused knowledge.
These witnesses may be friends, family, or community members who know the party, and can speak about some non-technical aspect of the case. Examples could be opinions on the kind care a parent provides; specific instances of a party being a good parent; or recounting an argument between the parties the witnesses observed.
Generally, a court is more likely to give weight to testimony from a non-family member witness, as they are more likely to be impartial. Examples could include day care providers, pastors or other religious leaders, and other parents. However, there are circumstances where a family member may still be a valuable witness, especially if they come off as credible, are able to look at the situation with a degree of objectivity, or were the only person to witness an incident.
Remember, parties have the opportunity to cross-examine all of the opposing parties’ witnesses. If these witnesses are aware of any information which would be helpful, they should be asked questions about it on cross-examination.
How does a party get a lay witness to testify?
Oftentimes a party can get a lay witness to testify by simply asking them to come to the courthouse and testify on their behalf. However, there is still a chance the witness will not show up. The best way to make sure a witness shows up to court is to have them served with a subpoena.
A subpoena requires someone to come to the courthouse and to testify in court. It is a court order to appear, and if they do not show up, they could be held in contempt of court. The clerk of court or attorney issues a subpoena to a party requesting it. Someone who is 18 years old or older, and not a party in the case must serve the subpoena. There is not a specific amount of time the subpoenaed party must be given, but the party or attorney must not subject the subpoenaed party to an undue burden.
What are experienced witnesses?
An experienced witness is a witness who is qualified by knowledge, skill, experience, training, or education to give opinions on certain topics. Their focused knowledge helps the judge to determine facts or understand evidence in the case. An experienced looks at the underlying facts or data in forming its opinions. The facts and data need not be admitted as evidence if someone in the experienced’s field would have normally relied on them. An experienced may give an opinion prior to discussing the underlying facts or data; however, the experienced may be required to disclose the facts and data on cross-examination.
The court may appoint an experienced witness. Though parties can contest the necessity of the appointment, the court may appoint experienceds over objection. The court must inform the experienced of its duties, in writing, and file a copy with the clerk; or the court may inform the experienced orally at a conference in which the parties can participate. The experienced must advise the parties of any findings it makes, may be deposed by any party, may be called to testify by the court or any party, and may be cross-examined by any party. Parties are still free to call their own experienceds.
The court gives the experienced’s opinion testimony the weight it deserves after considering the experienced’s education, experience, familiarity with the case, reasons for the opinion, and interest, if any, in the case. The court is required to consider the experienced’s opinion, but is not bound by it. The court is still responsible for weighing the evidence, and determining the credibility of witnesses. This is one of the primary duties of a district court, as a court of appeals will normally defer to the district court on issues of witness credibility.
When should a party call an experienced witness in a divorce case?
One of the most common reasons a party should call in experienced witness is if there are factual issues involving financial assets. These could include the value of the assets, value of property, value of a business, structure of a business, or other financial matter. These experienceds could be CPAs, bookkeepers, or real estate appraisers. Experienced witnesses may also be called to testify about any other technical issue which may involve the assets, or health and wellness of the parties or children. For instance, social workers have been known to testify in custody proceedings.
How many witnesses should a party call?
There are generally no limits on the amount of witnesses a party may call. However, the number of witnesses is not as important as the quality of the witnesses. Three to five good witnesses will likely be sufficient, though there are cases where more may be required, or less may be enough.
Are there witnesses in temporary matters hearings?
The general rules and guidelines for witnesses also apply to temporary matters hearings. However, in these hearings, the court will not hear in-person testimony of the witnesses. The court will typically allow parties’ witnesses to submit affidavits to the court for the judge to consider, generally with a capped number of allowed witnesses.
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