Consider “Invoking the Rule” in Divorce and Custody Hearings

By Dugan P. Kelley

divorce and custody denton county attorney family law

Invoking the Rule in Denton, Collin, Tarrant, and Dallas in Divorce and Custody Hearings:

During contested divorce and custody hearings, I frequently have clients who are concerned about whether the witnesses who are going to appear on the other side have the ability to hear the testimony of the other witnesses and collaborate with one another.  Essentially, they are concerned (rightly so) that the witnesses will team-up and discuss their testimony with one another.  The solution to this problem and ensuring that witnesses don’t discuss their testimony with one another or hear the testimony of other witnesses on the stand, is to “invoke the rule.”  (By the way, the rule is known as the “exclusionary rule” in California Courts.)

The Rule is Texas Evidence Code § 614, which provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:

(1) a party who is a natural person or in civil cases the spouse of such natural person;

(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;

(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause; or

(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.

Family Courts in Denton, Collin, Dallas, Tarrant and other counties will enforce “the rule” in divorce and custody cases.  This will prevent your ex-spouse from having family members, friends, or other witnesses sit in the Courtroom and listen to the testimony of other witnesses.

At the start of divorce and custody hearings, or prior to any witness taking the witness stand, you can simply ask the Court to “invoke the rule,” and the Court will issue a ruling that excludes all witnesses from the Court and instructs them not to discuss the case with one another or any third parties.  Failure to follow the Court’s ruling, can subject the violator to a contempt ruling, having to pay sanctions, potentially lose the hearing, or in the worse case scenario go to jail.  It is an important and serious rule that the Family Courts enforce.

Reasons to Invoke the Rule in Custody and Divorce Cases in Denton, Collin, Dallas, or Tarrant Counties:

One.  There are a number of very good reasons for you to invoke the rule, including:Truthful testimony from the witnesses. Bad witnesses will shad their testimony to mirror the testimony of other witnesses, particularly if they are able to sit in the Courtroom and listen to the evidence.  Even good witnesses may unintentionally be influenced to change their testimony by listening to others.  As such, invoking the rule prevents this type of untruthful testimony;

Two. Fairness to the side that may not have as many witnesses. In contested divorce or custody cases, it is fairly common for one side to try and bulldoze their way to a victory by overloading their case with more witnesses.  By invoking the rule, you have the ability to eliminate this tactic.  That same boatload of witnesses now doesn’t have the ability to mirror one another and you may find that their ability to be consistent with their testimony isn’t easy; and

Three. Eliminating the crowd may actually help facilitate settlement. If you are facing an adversary that is egged on by all the non-verbal or verbal support during breaks in testimony, invoking the rule actually helps remove those potential obstacles (boisterous and opinionated friends, witnesses, or relatives) who have shown up for the hearing from the Courtroom.  As a result, you may find that the removal of that safety blanket of the crowd from the Courtroom may actually facilitate settlement.

The Rule Does Not Apply to Every Witness:

In certain situations, the Rule cannot be used to exclude every witness from the Courtroom.  It doesn’t apply to parties in the lawsuit.  So, both mom and dad in custody and divorce cases will be allowed to stay regardless of whether the Rule is invoked.

In other civil cases, a designated company representative, employee, or officer of a corporate party is generally allowed to stay in the Courtroom even if the Rule is invoked.  Likewise, a person whose presence is shown by a party to be essential to the presentation of the party’s cause can stay.

Finally, the victim in a criminal case (unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial) is allowed to stay in the Courtroom even if the Rule is invoked.

Kelley Clarke PC Can Help You:

Whether to invoke the Rule is an important tactical decision that can have an impact on your ability to win your hearing or trial.  At Kelley Clarke PC, we can help guide you and assist in the evaluation of your particular divorce or custody case.