In many family court cases, the traditional rules of evidence are relaxed.  See generally Rule 2, Arizona Rules of Family Law Procedure (“ARFLP”).  Unless one party files a timely notice demanding strict compliance with the Arizona Rules of Evidence, all relevant evidence will generally be admitted in a court hearing, “provided, however, that the court shall exclude evidence [based on] . . . failure to adequately and timely disclose same.”  ARFLP Rule 2.B.2.

ARFLP Rule 49 requires that the parties to a divorce or other family court case seasonably disclose to each other evidence that is relevant to the issues in the case, as outlined in the rule, whether or not the evidence will be used in court by the disclosing party.  “Evidence” usually means documents or witness testimony.   As to documentary evidence, “disclosure” of such evidence generally includes providing copies of the documents to the opposing party or lawyer.  As to witnesses, disclosure includes providing the witnesses’ identity, contact information, and a brief description of the topic(s) about which each witness will testify.

The duty to disclose evidence begins “forty (40) days after the filing of a response to an initial petition.”  ARFLP Rule 49.  Generally, evidence must be disclosed sixty (60) days before the court trial or at such other time as the court orders.  ARFLP Rule 49 G.  Often, family court judges will order that all evidence be disclosed and exchanged thirty calendar days before a final trial or five court days before a temporary orders hearing.

Disclosure of evidence in advance of a trial or other court hearing is critical to avoid a “trial by ambush.”  Each party/attorney should have a fair and reasonable opportunity to prepare.  As noted above, the penalty for failure to timely disclose evidence is exclusion of the evidence.  See ARFLP Rule 2.B.2.

I recently went to court on a temporary orders hearing in a divorce case in which my client failed to provide me with any of the documents/evidence he wished to use in court until less than five days before the evidentiary hearing.  In that case, the judge had ordered that all witnesses and documents be disclosed/exchanged at least five court days before the temporary orders hearing.  I had advised my client of the disclosure deadline well in advance, but my client still failed to provide me his documentary evidence within the timeframe ordered by the court.

Although I disclosed copies of the documents to the other lawyer as soon as I received them from my client, the disclosures were all admittedly late.  I attempted to offer the documents into evidence at the hearing, but the other lawyer objected based on late disclosure, and the judge sustained the objection.  I was not allowed to introduce any documents into evidence nor to use any witness other than my own client.   I believe the exclusion of the evidence seriously negatively impacted the presentation of my client’s position regarding temporary orders.  Unfortunately, my client did not appreciate the importance of making timely disclosure of evidence until it was too late–too late for the temporary orders hearing anyway.  Hopefully the experience will help my client remember to make timely disclosure of evidence he wishes to use at the final divorce trial.

Judges control their own courtrooms and rule on evidentiary objections however they please.  A  judge can choose to allow late-disclosed evidence if she wishes to do so.  Whether the improper admission of late-disclosed evidence could form a basis for a successful appeal is beyond the scope of this post.

As to child custody and parenting time issues, however, it is both common and proper for judges to admit evidence that is relevant to these issues whether or not the evidence was timely disclosed.  Judges have a duty to determine what custody and parenting time arrangements are in a child’s best interests, and a judge’s ability to decide what is best for a child would be compromised if the judge excluded evidence relevant to that issue.  The child’s best interests override the policy favoring timely disclosure of evidence.  When evidence relating to child custody and parenting time issues is disclosed late, the court may deal with the late disclosure by imposing a monetary or other sanction but not by excluding the evidence.  Hays v. Gama, 67 P.3d 695, 700, 205 Ariz. 99 (2003).

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