This article originally appeared in The Recorder on September 16, 2021.

I have fielded several calls in recent months from family law practitioners looking to appeal a family law ruling on the basis that their client was denied their ability to present live testimony at a critical evidentiary hearing. The Supreme Court established what seemed to be a clear due process requirement for these types of hearings in 2007’s Elkins v. Superior Court, and the Legislature expanded and codified that ruling in Family Code section 217, which says that trial courts “shall” receive “live testimony” that is within the scope of an evidentiary hearing. The California Rules of Court also specify that family law trial courts must receive live testimony where relevant and cannot resolve a disputed issue through summary adjudication or demurrer.

Seems simple, right? Indeed, the rule seems so clear that you might be forgiven for assuming a trial court’s failure to give the parties a chance to offer live testimony would be an easy ground for reversal. But, unfortunately, it turns out that the failure to hold an evidentiary hearing isn’t always a strong issue on appeal, depending on the context and how well trial counsel avoided forfeiture.

There are a few reasons that this mandate is less forceful than it initially appears. First, and simplest, family law litigants are only entitled to an evidentiary hearing to resolve disputed issues of material fact. So, for example, if a party moves to set aside a judgment, and it is clear from the face of the motion that the request is untimely, the trial court is not required to take evidence to resolve the statute of limitations question as a matter of law. In fact, the absence of material facts in dispute is always an adequate ground for the trial court to deny a requested evidentiary hearing. 

Second, in certain circumstances, family law litigants are not entitled to an evidentiary hearing unless they first establish a prima facie case of entitlement to relief. For example, a party opposing a post-judgment move away request must first make a prima facie showing that the move would be detrimental to the child and, only then, are they entitled to an evidentiary hearing. Likewise, a party seeking modification of a permanent support order must make a prima facie showing of changed circumstances before being entitled to an evidentiary hearing on the requested modification. If the trial court holds that your client did not establish a prima facie case entitling him to relief and therefore denies an evidentiary hearing, the order may be appealable – but not on the basis the client was denied an opportunity to present live testimony.

Third, trial courts are not required to hold evidentiary hearings if the parties “stipulate” to resolve the matter on the pleadings and declarations submitted. The trap here is that the stipulation need not be in writing or even particularly clear from the record, meaning that the right to an evidentiary hearing may be unintentionally forfeited simply by failing to object to the other side’s request or a suggestion from the judge that the court rule on the papers. 

This problem arises most often because requests for orders and their responses in family law cases must be supported by declarations under oath. The purpose of these declarations, however, is simply to frame the issues (or to establish a prima facie case where required) – they are not considered evidence unless the parties move to admit the declarations into evidence and they are so admitted. 

Nevertheless, where both sides have submitted declarations, and the court says it can resolve the matter on the papers, your failure to immediately object and demand live testimony or cross-examination may be interpreted by the Court of Appeal as tacit agreement to not hold an evidentiary hearing. The Court of Appeal has even inferred an agreement to waive evidentiary hearings by counsel’s failure to submit a witness list in advance of the hearing, with no other request or discussion of the issue by the trial court.

So how do you protect your clients’ due process right to an evidentiary hearing on disputed facts? The most direct way is to ask for an evidentiary hearing under Elkins and section 217 at the first opportunity and comply with all local rules regarding pre-trial briefs and witness lists. You should also object to any effort to admit moving declarations as evidence, and if they are admitted anyway, you should ask to cross-examine the declarant. 

If the court still seems inclined to not hold an evidentiary hearing, make your objection clearly on the record (with the court reporter you were sure to bring paying attention), and specify the disputed facts that need resolution by the court. There is no harm either in asking the court to state its grounds for refusing to take the requested live testimony.

Trial courts are pressed for time, especially these days with the backlog they face due to the pandemic, and often prefer to resolve matters on the papers where they can. But if your client really needs an evidentiary hearing to prove their case, or disprove the opponent’s case, and the trial court isn’t playing ball, then taking care to preserve the issue correctly for appeal is essential.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. Kelly Woodruff is of counsel with the firm. Kelly is certified by the State Bar of California as an appellate specialist. She has clerked in both the Ninth Circuit and the U.S. District Court for the District of Hawaii. Find out more about Kelly and the California Appellate Law Group LLP at

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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