Family Law

Do I Have to Appear or Testify at My Custody, Support, or Other Divorce Hearing?

By Joseph Pandolfi, Retired Judge
If you and your spouse can't resolve your divorce-related issues, a court will schedule a hearing to consider both sides' arguments and make decisions. It's possible that a judge may allow you to skip a hearing, but that might not be the best strategy for your case.

How Courts Handle Divorce Hearings

Family law court rules vary from state to state, but generally, they set forth how divorce hearings should proceed, including support and custody hearings. Although they are part of the overall divorce process, support and custody procedures are, in many ways, unique.

Applications for Child or Spousal Support

Today, child support decisions have become fairly routine: Every state uses guidelines, which allow attorneys and judges to calculate support based primarily on parental income. Parents that have submitted all the required financial paperwork may not need to attend a child support hearing, especially if they're represented by an attorney. But if the other side wants to cross-examine (question) you regarding any of the statements or numbers contained in your paperwork, a court may order you to appear and testify at the hearing.

Alimony (also called spousal support) can be a bit more complicated. Some states have no formulaic guidelines for calculating spousal support and look instead at the facts of each case in order to come up with a number. But even in states that do use income-based alimony formulas, courts will also look at certain guiding principles in order to determine an appropriate amount. For example, courts will consider how long the couple was married, the spouses' earning capacities, and the marital standard of living in order to set the alimony payment and duration. Despite the additional complexity, if you're represented by a lawyer, you may not have to appear at an alimony hearing, unless your attorney believes you should be there, or the court orders you to appear and testify.

If you're representing yourself in either a child support or alimony application, and the court has scheduled a hearing, you'll need to appear and present your case.

Child Custody Disputes

Contested custody cases are a different matter. These cases are very fact-specific, and judges normally want to gather as much information as possible about the parents and their relationship with the children. When parents can't agree on custody, courts will appoint a trained custody evaluator—usually a licensed psychologist or mental health professional—to interview the children, their parents, extended family, teachers, and counselors and determine what custody arrangement would be best. Custody evaluators are usually required to testify at custody hearings. If you're represented by counsel, the court might not require you to appear, unless the court feels your testimony is necessary. But if you don't have an attorney, it's almost certain the court will want you there.

Appearance at the Final Divorce Hearing

If you and your spouse have been able to settle all your issues, some states now allow you to submit an affidavit (written sworn statement) to the court, rather than appear at a final divorce hearing. The affidavit will contain all the representations you would have made to a judge in court. If the court handling your case doesn't permit this, then you'll have to appear and make those representations in person, particularly if you filed the divorce petition (requested the divorce).

If you haven't resolved your case, and a trial is necessary, you'll need to appear in court, especially if you're representing yourself. And note that in any type of hearing where the court requires your appearance, defaulting (not showing up) could result in the court dismissing (throwing out) your case.

Should You Appear in Court Even if It's Not Required?

It's probably fair to say that—given the option—most people would just as soon avoid appearing in court. And that's perfectly understandable, but it might not be a very wise decision for your divorce case. If you have a lawyer, and you don't want to appear at a temporary support hearing, that's one thing. But not showing up for a child custody hearing or a contested divorce trial could be a huge mistake.

If you're fighting for custody of your children, but you don't attend the custody hearing, you'll likely leave a terrible impression on the court. Judges are human, so you could hardly blame one for wondering just how much you really care about custody if you're nowhere to be seen. Your lawyer will be able to cross-examine your spouse and any witnesses your spouse might bring, but your attorney can't testify for you. If you don't appear, the judge won't hear your side of the story. Remember that temporary custody orders often set the stage for permanent custody, so it's important to make your best effort throughout the process.

You run into the same issues with your divorce trial. Remember that judges issue permanent orders after a divorce trial, so the final hearing will undoubtedly have a profound impact on your future. Choosing not to participate could very well leave you second-guessing your decision for years to come.

If you have questions about custody, support, or divorce issues in general, you should speak with an experienced divorce lawyer, who can guide you through the process and ease your fears about appearing in court.

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