Family Law Litigation After Shimkus: Before Submitting at a Hearing, Always Move to Admit Your Declarations
By Lauri Kritt Martin
Since Reifler v. Superior Court (1974) 39 Cal.App.3d 479, family law attorneys in California have long relied on ubiquitous language in family law declarations stating that the declaration is offered in lieu of personal testimony under Sections 2009 and 2015.5 of the Code of Civil Procedure and California Rule of Court 5.111. However, in In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, the Court of Appeal signaled that such practices should no longer be used as a short cut for admission of evidence.
Reifler held that the trial court had discretion to exclude oral testimony for all post-judgment matters except for an order to show cause re contempt, and that the local policy of excluding oral testimony was acceptable, as long as it was not a substitute for the court’s discretion to admit oral testimony if appropriate. This ruling came about in large part due to the need to expedite family law hearings in Los Angeles, and shorten trial court calendars. One result of Reifler was that family law attorneys focused more on the drafting of their declarations, and placed less emphasis and importance on their trial skills and introduction of evidence at the actual hearing.