Witness Testimony in California Family Law Cases

There are two main ways a witness can give evidence in a family law case:

• A written declaration: a signed, written statement the witness makes under penalty of perjury.
• Live testimony: the witness speaks to the judge at the hearing and can be asked questions.

Most family law hearings start with written declarations. Sometimes the judge also hears from witnesses in person. This applies to Request for Order (RFO) hearings in a divorce, before or after judgment, and to DVRO hearings. Where the rules are different for DVROs, this page says so.

At most family law hearings, the court must receive any live, competent testimony that is relevant and within the scope of the hearing, unless both sides agree otherwise or the court finds good cause not to. The judge may also ask the parties questions. (Fam. Code § 217(a))

If the judge refuses to hear live testimony, the judge must state the reasons on the record. (Fam. Code § 217(b))

Rule 5.113 of the California Rules of Court lists factors the judge considers when deciding whether there is good cause to refuse live testimony. These include whether the matter is substantive (like a restraining order), whether important facts are in dispute, and whether the judge needs to decide who is telling the truth (credibility). (Cal. Rules of Court, rule 5.113)

In plain English: DVRO hearings are the kind of hearing where judges usually want to hear live testimony, because credibility matters. Still, ask early, and in writing, by filing a witness list (see below).

If you want someone other than you or the other party to testify live, you must file and serve a witness list before the hearing. The list includes a brief description of what each witness is expected to say. (Fam. Code § 217(c))

The witness list is served with your Request for Order or your responsive papers. You may use Judicial Council form FL-321 (Witness List). (Cal. Rules of Court, rule 5.113)

If a witness list was not served, the court may, if asked, give a short delay (continuance) (Fam. Code § 217(c)), or may require an “offer of proof,” meaning a short explanation of what the witness would say. (Cal. Rules of Court, rule 5.113)

A declaration supporting or responding to a Request for Order can be no longer than 10 pages. A reply declaration can be no longer than 5 pages. Expert declarations are an exception, and the court can allow longer declarations if you ask. (Cal. Rules of Court, rule 5.111)

A declaration must follow the court's formatting rules (rules 2.100 and following), be based on the witness's own personal knowledge, explain how the witness knows the facts, and contain statements the court can accept as evidence. (Cal. Rules of Court, rule 5.111)

Objections: If you object to the other side's declaration, your objection must be in writing and filed at least 2 court days before the hearing, or it is waived (unless the court finds good cause). Objections the judge does not rule on are treated as overruled. (Cal. Rules of Court, rule 5.111)

Forms: A witness can write a declaration on form MC-030 (Declaration), or on blank paper that ends with a signed statement under penalty of perjury under the laws of California. (Code Civ. Proc. § 2015.5) Use the wording printed on form MC-030 if you are unsure.

If the other side objects to a witness's written declaration, the witness may need to come to court in person. (Judicial Council of California, Self-Help Guide)

Personal knowledge means the witness saw, heard, or experienced the thing themself. A witness generally can only testify about what they personally know. (Evid. Code § 702)

Hearsay is, in simple terms, a witness repeating what someone else said outside of court to prove that it is true. For example, “My neighbor told me she saw him break the window.” Hearsay is generally not allowed, but there are many exceptions. (Evid. Code § 1200)

The hearsay rules are complicated. If you are unsure whether a statement can be used, ask your court's self-help center or family law facilitator.

Children are not required to take part in family law cases. A child may not speak to the court about custody or visitation in front of the parties unless the court finds that it is in the child's best interest. (Cal. Rules of Court, rule 5.250)

If a child who is 14 or older wants to speak to the court about custody or visitation, the court must allow it unless the court finds it is not in the child's best interest. A child's testimony must be on the record or in the parties' presence. (Cal. Rules of Court, rule 5.250; Fam. Code § 3042; Evid. Code § 765)

California courts may allow witnesses to appear remotely. (Code Civ. Proc. § 367.75; Cal. Rules of Court, rule 3.672)

• To ask for a remote appearance at an evidentiary hearing (one where witnesses testify), file form RA-010 (Notice of Remote Appearance). Deadlines depend on how much notice the hearing was set with. For hearings set on short notice, such as restraining order hearings, the deadline is shorter. Check rule 3.672 or ask the clerk for the exact deadline for your hearing.
• The other side can object with form RA-015. When the hearing was set on less than 15 court days' notice, the objection is due by noon the court day before the hearing.
• The court can still require someone to appear in person. Each court uses its own video platform and procedures, so check your court's website.
• There is no fee for a video appearance for parties who are not charged filing fees, including in domestic violence cases. (Cal. Rules of Court, rule 3.672(k))

If a witness will not come to court voluntarily, you may need to subpoena them (a court order requiring them to appear). Your court's self-help center or family law facilitator can help you with the correct forms and steps.

In domestic violence restraining order cases, there is no fee for a subpoena filed in connection with the request. (Fam. Code § 6222)

The judge may not let every witness speak. Bring your witnesses, and if possible, bring their written statements too. (Judicial Council of California, Self-Help Guide) The order in which people testify depends on the judge.

Before your hearing, check that you have:

• Witness list filed and served (if you want non-party witnesses to testify)
• Declarations filed and served
• Exhibits marked, with copies for the judge and the other side
• Subpoenas, if a witness will not come on their own
• Interpreter requested, if you or a witness needs one
• Remote appearance notice filed, if a witness will appear by video

• The judge may grant a DVRO based on reasonable proof of a past act or acts of abuse, and can rely on your own declaration or testimony. You do not always need other witnesses. (Fam. Code § 6300)
• If a temporary restraining order was granted, it stays in place until the hearing.
• A DVRO after hearing can last up to 5 years. (Fam. Code § 6345)

Learn about the different types of restraining orders.