United States: What Constitutes "Evidence On Motions" In The Family Part?

Last Updated: October 7 2015
Article by Robert A. Epstein

As loyal readers of this blog may know, I often write about the trials and tribulations of practicing law in the Family Part. Whether to benefit readers, engage in a vent session, or a bit of both, this particular post focuses on what evidence litigants should and should not include in support of a motion filed with the court. For our non-attorney readers, a motion is what a litigant files when he or she wants the court to do something – hopefully only after efforts to resolve the issue with the other party have failed. For instance, maybe the divorce proceeding just commenced and the other spouse has financially cut you off from everything. You tried to discuss it with him, but he had no interest in resolving the issue. Perhaps there is a custody and parenting time agreement in place, but she refuses to abide by its terms.

There are countless reasons to file a motion with the court asking for help. In support of the motion listing your requests for relief, you may file a brief setting forth the relevant law. In family law practice, briefs are not necessarily the norm, although a judge may find it useful depending on the subject issues. The litigant will also file an affidavit/certification telling his or her story and why the court’s help is needed. When putting together the certification, how is the litigant supposed to know what the certification should say, or what proof should go along with it.

The Rules of Court in the State of New Jersey talk about how certifications filed with the court can be based ONLY on the certifying litigant’s personal knowledge. Specifically, Rule 1:6-6 provides:

If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

Well, what on Earth does that mean? The personal knowledge part is in there, but then it talks about facts that are admissible in evidence to which the certifying party can testify. Well, what does that mean? Does that mean that a litigant can certify to what her friend told her about her husband? Not likely, because that would constitute inadmissible hearsay (defined as an out of court statement submitted for the truth of the matter asserted). Does that mean a litigant can certify as to what a child’s therapist said to her about the other party? No, for the same reason. Does that mean that a litigant can certify as to the details of all settlement discussions to show that the other party is being unreasonable? No, because those discussions are supposed to be confidential.

Most importantly, however, does that actually stop litigants from doing any of the above? Of course not. Despite certifying under oath, litigants will essentially throw whatever they can at the wall to see what will stick in the mind of a judge including, but not limited to, unsubstantiated assertions, inadmissible hearsay, settlement discussions, argument, and the like. There is little that can be done to stop it. Objections are made but, at that point, even if the objection is sustained, the damage may have already been done. There is no jury to excuse should something come out that should not have been said. There is no cork to shove the genie back in the bottle. Motion papers typically do not involve testimony, so a family court judge is being asked to make a determination based on nothing more than competing certifications. Judges are not supposed to weigh the credibility of Certifications.

While a plenary hearing may ultimately be scheduled so that the judge can take testimony based on the competing certifications, temporary relief is often granted until such time, with such relief based solely on what either party has to say. I was recently in court on a matter where one party filed an emergent application against the other party to suspend my client’s parenting time based on allegations that were completely unsubstantiated and supported with nothing more than inadmissible hearsay. Understandably erring on the side of caution, the family court judge imposed the temporary restraints and suspended the parenting time pending a return date. It was not until the return date that the judge could see, after hearing from both parties rather than just one, that the allegations were completely bogus. The parenting time was restored in full, as a result, and additional parenting time granted to repair the potential damage done by the time lost.

The reason for telling the story is that the judge, in rendering her ruling, generally noted how affidavits or certifications – even in the family part – must be properly prepared and filed in accordance with the rules, with appropriate references to the record and without the very sort of assertions prohibited by Rule 1:6-6. It was a keen reminder from a jurist about how litigants and practitioners are not absolved from following the rules simply because a family part matter is involved. If anything, with the stakes often higher in this part than any other, the rules carry a greater significance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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