Family Code 217 Requires Live Testimony at Certain Family Law Hearings

by B. Robert Farzad

What does Family Code 217 state? How does this code affect hearings in divorce and family law cases? 

We are going to first look at Family Code 217's text. We will then analyze it.

Text of California Family Code 217

"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

What does Family Code 217 tell us about hearings?

It is interesting Family Code 217 still refers to an "order to show cause" and a "motion." Several years ago, the Family Code and California Rules of Court changed to refer to these as a request for order. Courts apply Family Code 217 to request for order hearings. 

Here is what Family Code 217 really tells us.

1. The court must allow live testimony unless one of two things happen. First, the parties do not want one and agree to that. Second, the court believes there is "good cause" to deny live testimony. If the court relies on good cause, the court must state its reasons on the record (court reporter typing) or in writing.
2. The person who wants the live testimony has to file with the court and serve on the other party a witness list. If he or she fails to file and serve a witness list, then Family Code 217 gives the court the option to continuance the hearing and, pending that new date, make temporary orders.

Family Code 217 refers to "good cause" but does not state what that means 

What is good cause? Family Code 217 does not tell us. Instead, it states the "Judicial Council" must come up with that answer. Fortunately, the Judicial Council did exactly that. California Rules of Court 5.113 gives us that and more. Here is what it states:

"(a)        Purpose

Under Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing.

(b)       Factors

In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217:

(1)Whether a substantive matter is at issue-such as child custody, visitation (parenting time), parentage, child support, spousal support, requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties;

(2)Whether material facts are in controversy;

(3)Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses;

(4)The right of the parties to question anyone submitting reports or other information to the court;

(5)Whether a party offering testimony from a non-party has complied with Family Code section 217(c); and

(6)Any other factor that is just and equitable.

(c)        Findings

If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing. The court is required to state only those factors on which the finding of good cause is based.

(d)       Minor children

When receiving or excluding testimony from minor children, in addition to fulfilling the requirements of Evidence Code section 765, the court must follow the procedures in Family Code section 3042 and rule 5.250 of the California Rules of Court governing children's testimony.

(e)        Witness lists

Witness lists required by Family Code section 217(c) must be served along with the request for order or responsive papers in the manner required for the service of those documents (Witness List (form FL-321) may be used for this purpose). If no witness list has been served, the court may require an offer of proof before allowing any nonparty witness to testify.

(f)        Continuance

The court must consider whether or not a brief continuance is necessary to allow a litigant adequate opportunity to prepare for questioning any witness for the other parties. When a brief continuance is granted to allow time to prepare for questioning witnesses, the court should make appropriate temporary orders.

(g)       Questioning by court

Whenever the court receives live testimony from a party or any witness it may elicit testimony by directing questions to the parties and other witnesses."

We hope you enjoyed this article on Family Code 217 and you read more of our informative material on the California Family Code.