You live in North Carolina, as you have for several years. Now, though, you want to move to Florida for a great job opportunity. The neighborhood where you would live is full of children, and the schools are fantastic. There are countless extracurricular activities that your kids could participate in. Not to mention, you have numerous relatives who live near your new neighborhood.
You’ve filed a motion with the court proposing that you modify your custody order to move to Florida with the children. The court has set a hearing date. Now, how do you show the North Carolina court all the great benefits of Florida life for your children?
Witnesses and documents are the most common types of evidence that parties present at child custody hearings. The process is much easier when all the important witnesses and documents are in the state where the trial will actually take place. But that’s generally not possible for cases involving long-distance relocations.
When witnesses and documents are not in the same state as the court that will hear your case, it can add a layer of complexity and expense to your child custody hearing.
How Can Witnesses From Another State Testify If They Can’t Attend Your Hearing?
It’s common for witnesses who live out of state to be unable to attend trial. Attending a trial may be cost prohibitive for out-of-state witnesses due to the expenses of travel or missed work. Witnesses also may not want to travel to court and testify for a variety of reasons.
What can you do?
One option is to arrange a video deposition. A deposition is recorded testimony that takes place outside of court, usually at an attorney’s office. Parties can record depositions in one of two ways:
- a court reporter or stenographer transcribes the witness’s testimony, or
- a video camera records the witness while testifying.
The more common method is for a court reporter or a stenographer to record testimony. However, where the witness is out of state and will not be present at trial, a video deposition allows the judge to actually see the person instead of just reading his or her answers.
If it is your witness being deposed, you would send legal notice to the other party of the deposition so that the other party and his or her attorney could be present, and vice versa.
As mentioned above, depositions typically take place at an attorney’s office. During a deposition, the witness has to answer a lawyer’s questions under oath, just as if he or she were in court. Where possible, both attorneys will question the witness on the same day to save everyone time and money.
Deposing a witness in another state is more costly. You also must follow different procedures if the witness will not submit voluntarily to the deposition. Compelling a witness to participate in a deposition will increase your costs as well.
Video depositions provide certain advantages but also come with their own disadvantages.
The Advantages of Video Depositions
Consider the following advantages of a video deposition:
- If the witness is your witness, your attorney could review the questions ahead of time with the witness. This way, the witness has time to formulate a thoughtful, clear answer. Most people are nervous about giving recorded testimony. Reviewing the questions ahead of time with the witness can reduce the witness’s anxiety and help the witness look more credible.
- A deposition occurs in a controlled environment, usually in an office or a conference room, as opposed to a courtroom. The questioning at a deposition is generally more relaxed and less stressful for a witness.
- The witness may avoid the cost and inconvenience of traveling to another state for the trial by giving his or her testimony in a local deposition. This can make for a happier witness who is more likely to give helpful testimony.
The Disadvantages of Video Depositions
Keep in mind that there are also drawbacks to video depositions, such as these:
- With a deposition, you lose some of the persuasive effect or emotional impact of live testimony. Watching a person on a video screen is much different from seeing the same person a few feet away on the witness stand.
- The demeanor of a person may be different in a video deposition. Depending on which side you are on, this may help you or hurt you.
- With a deposition, you cannot ask follow-up questions after the video has played in court. If the judge has additional questions, that could be an issue. Similarly, if any significant developments have occurred since the deposition, you will not be able to explore the impact of those new facts with the witness. Sometimes a judge will allow a phone call to the witness in open court, on the record, for follow-up questions. This is rare, though, and questions and answers over the phone can be confusing and difficult to follow.
- Even when they are less expensive than live witnesses, depositions can still be very costly. You may need to have the video deposition transcribed into written form for the court’s records. Further, the lawyers are paid for their time at a deposition, and depositions tend to take at least several hours. And, of course, you’ll have to pay the additional costs to travel to the state where the witness resides. Sometimes attorneys retain a local attorney to conduct the deposition to reduce costs. In the long run, this is sometimes more costly, given the time required to get the local attorney up to speed on your case.
Remember that depositions are binding sworn testimony. Once the deposition is complete, a party can enter that testimony into evidence.
Can the Other Side Object to My Use of a Video Deposition?
If the other side cannot afford to be present at the deposition, the other lawyer could file a motion to quash the deposition. If the court quashes the deposition, it may not allow the party to play the video in court or may not allow the deposition to happen at all. The other lawyer could allege that it would be unfair to allow the deposition given the financial strain that it would impose on that party. The attorney could also allege that the opposing party is conducting the deposition primarily to harass the witness, if valid reasons support this argument. As with everything in the law, the court’s decision will depend on the particular facts of each situation.
Can I Require Witnesses to Appear Even If They Live Several States Away?
Parties may subpoena out-of-state witnesses to court if they follow the proper procedures. Even with correct procedures, though, witnesses may still object to appearing in court due to the distance or cost involved. In that case, it would be up to the judge to decide whether the witnesses actually have to appear.
If a witness objects to coming to court, you can ask the court to require the witness to appear. First, though, give some thought to whether that’s a good idea. Compelling an appearance over an objection usually gets you an angry witness, and that may not be the witness you want on the stand. In some situations, it may be necessary to require a witness to appear regardless of his or her feelings about testifying in court.
How Do I Present Out-of-State Records to the Court?
It’s a common misconception that you can present any information in written form as evidence in court. This is not so. Every record that you offer into evidence in court must be authenticated by either the person who prepared the document or the document’s custodian (the person who has the document).
Just like it sounds, authentication ensures that the documents that parties use in court are authentic—not fabricated, forged, or modified.
Let’s say, for example, that you moved with your child to another state and enrolled your child in school before your court hearing. You have the teacher’s notes about how well your child is doing in school. You want to enter them into evidence so the court knows that this move has benefited your child. How can you authenticate those notes?
The teacher could come to court to testify that he or she prepared the notes, but that isn’t likely to happen.
The other party could agree that the notes are legitimate and consent to entering them without the teacher being present.
Alternatively, you could depose the teacher and present the notes during the deposition. You would need the teacher to read from those notes or summarize their contents. Later, at the hearing, you could show the teacher’s deposition in court, if the judge allows it.
What about medical records? You can enter those into evidence without the doctor coming to court, right? Wrong. The doctor must be in court to testify that the records are the real deal. Otherwise, you can depose the doctor and elicit testimony about the records in the deposition.
Self-Authenticating Records
Thankfully, some records self-authenticate. You can enter these records into evidence without a witness verifying their authenticity. Self-authenticating records include the following:
- public documents under seal;
- certified copies of public records;
- official publications that a public authority issued, such as books, pamphlets, or other publications; and
- newspapers and periodicals.
These are just a few of the types of documents that are self-authenticating. How can any of these records be helpful? For example, let’s say an article in the local paper publishes a glowing report about the school that you plan for your child to attend in your new state. The paper claims that this is one of the best schools anywhere. You could offer this article into evidence when you discuss where your child would attend school.
How Do I Subpoena Records or Witnesses in Another State?
First, what is a subpoena? A subpoena is a method that a party uses to request that certain documents or witnesses be produced in court or at a deposition.
Issuing a subpoena in North Carolina to request the appearance in court of documents or a witness is fairly easy. Your attorney completes the subpoena form and has it served on the custodian of the documents or on the witness, in accordance with the state’s legal service requirements.
A subpoena must be served properly to be effective. Typically, parties can serve subpoenas by certified mail, or a police officer or a third-party process server can deliver them. If one of these official methods is not used—if you, a family member, a friend, or your attorney just leaves a subpoena on someone’s doorstep—it isn’t valid service.
The person subpoenaed to appear in court or to produce documents has the right to object to the subpoena if valid grounds exist for an objection. The judge must hear those objections and then determine whether to allow the subpoena or quash it.
If the witness or document you need is located in another state, the subpoena process is more complicated. You must follow that state’s rules regarding subpoenas. If your case is in North Carolina, you may also have to obtain a commission for the subpoena. That commission simply authorizes you to conduct a deposition and swear the necessary oaths in another state on behalf of your North Carolina case.
Why does this matter? Out-of-state subpoenas increase the cost of your case and may waste valuable time. Dealing with objections from a person you have subpoenaed is also expensive and time-consuming.
You may ask your attorney to issue subpoenas in another state anyway, but be prepared for potential objections and substantial costs.
But Really: How Does It Work When I Need Out-of-State Records and Witnesses?
In most of these cases, the majority of the in-court testimony comes from the two parents and any family members who are willing to travel. More often than not, teachers and doctors are not present at these hearings.
Brainstorm to come up with lower-cost options that may help you establish the same points with the court.
- Instead of presenting a teacher’s notes, you may find an article in the newspaper describing the school.
- Rather than the teacher testifying, you may testify about your visits at the school and the advantages that the school has to offer for your children.
- Instead of the gymnastics coach testifying about the extracurricular program offered in your new location, you may bring a publicly distributed brochure describing the program.
Often, lower-cost alternatives can help you prove your essential facts to the court. Your attorney can guide you in how to use other forms of evidence when you cannot present certain witnesses and documents in court.
Nonetheless, if a witness or document is truly critical to your case, you may have no choice but to incur the costs and have the witness or documents produced in court. Talk with your attorney about the best course of action to pursue.
