Understanding the Basics of Your Colorado Divorce or Custody Hearing (part 2)

In the first part of this article, I ventured into the significance of a full blown court hearing, as opposed to a status conference. I also started discussing the beginnings of that contested Arapahoe County divorce or custody hearing. To refresh, my usage of the term “full blown” hearing equates to a contested, evidentiary hearing, in which witnesses, including the parties, will be called to give testimony. Documentary or other evidence may also be submitted to the court for consideration. At the end of such a hearing, the judge or magistrate will render a decision. The conclusion of Part 1 of this post touched on opening arguments, followed by brief discussion of testimony and who goes first. To correct, or clarify, a prior statement, in a pre-decree divorce, custody, or child support case, the “petitioner” goes first. In post-decree hearings, such as might relate to a motion to modify child custody, the “movant, meaning the party who filed the underlying motion, gets to go first, regardless of whether they are designated as the “petitioner.

Going first in a hearing can have its advantages, or pitfalls. Whether in law, business, or social settings, first impressions can have a lasting impact. Thus, it is important for both party and attorney to be ready to effectively present the case. As both parties are fair game for providing testimony on the stand, sometimes it can be advantageous to call the other party first, thereby getting the first bite at the proverbial apple by getting them to say things favorable to your side. Doing so can also potentially derail all efforts made preparing to testify, which may have been rehearsed between counsel and client. Though calling the other side right out of the gate can be an effective tactic, the norm is that the side going first will call their witnesses first and leave the other party for their own attorney to deal with.

When testimony begins, it will generally be with the attorney calling his or her own party, or declared witnesses, for what is called “direct examination.” Sequentially, the other side then has the right to cross examine that witness. The first attorney will then be entitled to “redirect” examination, which is designed to clarify things asked on cross. Some judges will the allow “recross,” though some will not. With direct examination, the witness will generally be asked questions, or prompts, which require them to relate specific information as part of telling the overall story. Some witnesses, such as a child and family investigator, may be asked a wide array of questions and testimony may take a significant amount of time. Other witnesses may be asked only a few questions related to a specific instance or set of facts. The primary thing to keep in mind is that witnesses will need to relay information beyond just “yes or no” answers. Repeatedly asking “yes or no” questions, with the attorney really setting forth the facts will almost always ultimately lead to objections based on “leading the witness.” The point of direct is to have the witness provide pertinent information to the court for it to consider. Each witness’ testimony should be viewed as building block in presenting the overall story of the case and its issues.

After a witness goes through direct examination, he or she will be subject to cross. On cross examination, the examining attorney is essentially bound to questions or topics raised on direct, though courts will likely allow a broader scope when the witness is one of the parties. Cross examination is the point in a case which most people dread. The attorney’s goal when conducting cross examination is primarily to unsettle the testimony given on direct, whether showing the witness is being untruthful, attacking the witness’ version of events, attacking conclusions or methodology, say with an expert, or to just put a different spin on the testimony for the judge to consider. When an attorney examines his or her client, they will generally be methodical and working in unison with the witness. When being cross examined, a party or witness should be ready to be attacked. This can include being attacked on credibility. Cross may also entail dissecting the logic of the witness, or showing his or her bias. It can also include efforts on the part of the examining attorney to emotionally rattle the witness, perhaps pushing his or her buttons to elicit an angry response. Emotions and demeanor on the stand matter in Denver family law cases. Aside from getting a favorable ruling, perhaps nothing is more satisfying to an attorney that destroying the other side, or a witness, on cross examination. Some witnesses or parties hold up and do well on cross. Others do not. Thus, preparation is important to brace for being cross examined. One must also keep in mind that his or her attorney will also get redirect, which, again, is a chance to rehabilitate the witness related to the questions asked on cross.

At any contested hearing, both sides will get to go through the sequence of direct/cross/redirect with each witness when presenting their side of the case. Some hearings can be just the parties testifying. Others can be multiple witnesses. Hearings can be an hour or two. Hearings can also last a day, or two, or more, depending on the number of witnesses and issues. For a divorce case in which there are custody, property, debt, child support, and maintenance issues one should expect to be in court for at least a full day.

Throughout the testimony process, and the presenting of evidence, there will likely be objections based on the rules of evidence, whether related to relevance, hearsay, the authenticity of a document, or a whole array of other potential issues. In essence, each side’s goal is to have his or her story told related to the issues. That story is bound by both procedural and evidentiary rules.

In the next portion of this article I will look at the conclusion of the evidentiary phase, closing arguments, and the court’s ruling. I will also touch on evidence and objections a little more, as any party should be familiar with things which can or cannot be said while on the stand. Going through a court hearing is like no other experience one can have. In a divorce or custody case, the stakes are higher, as the future of you and your family in on the line.It’s always better to contact an experienced Denver family law firm prior to your day in court.