Navigating the Admission of Declarations into Evidence in California Family Law: A Practical Framework for Practitioners

A Request for Order (RFO) hearing is not a shortcut around the rules of evidence. Even though RFOs are less formal than trials, the same core principle applies: your evidence must be admitted into the record. If your declarations or exhibits are not admitted, the judge cannot rely on them — no matter how compelling they are.

This article provides a practical, step-by-step framework for California family law practitioners on how evidence rules apply to declarations at each stage of the RFO process. It covers:

• drafting declarations that comply with evidence rules;

• preparing for the RFO hearing; and

• ensuring that declarations are properly admitted once the hearing begins.

Drafting the Declaration

Under California Rules of Court Rule 5.111(b)(2), a declaration must:

1. Be based on the declarant’s personal knowledge;

2. Explain how the declarant acquired that knowledge; and

3. Contain statements that would be admissible in evidence.

Before finalizing the declaration, it’s helpful to review a checklist of common evidentiary objections — such as lack of foundation, hearsay, improper opinion, or argument — to ensure each statement would withstand scrutiny.

When working with your client, don’t just record what happened; ask, “How do you know that?” This simple question often reveals whether the testimony is grounded in personal knowledge or derived from hearsay. It also helps you build a cleaner evidentiary foundation and spot weaknesses early.

Taking the time to develop these details serves two purposes:

• It ensures your declaration rests on admissible facts, and

• It makes it easier to convert your declaration into a direct-examination outline if live testimony becomes necessary.

By clarifying how your client knows each fact, you not only strengthen your declaration but also help the judge make a more informed ruling at the hearing.

Addressing Evidentiary Objections prior to the RFO Hearing

Under California Rules of Court Rule 5.111(c)(1), a party may make evidentiary objections to your declaration if it does not comply with the rules of evidence. However, these evidentiary objections are waived unless one of the following occurs:

1. Written objections are filed and served at least two court days before the hearing; or

2. The party makes objections in writing or orally at the time of the hearing, and the judge finds good cause to permit them.

In addition, California Rules of Court Rule 5.111(c)(2) provides that if the Judge does not specifically rule on an objection, the objection is presumed overruled.

Preparing for the RFO Hearing

As always, preparing for an RFO hearing begins with a meaningful meet-and-confer. For RFO declarations, your meet-and-confer should focus on:

1. Whether either party will request live testimony under California Family Code § 217

Confirm whether the other side intends to request live testimony and whether you will be doing so. This informs your time estimate, your witness preparation, and whether the hearing can reasonably proceed or should be continued.

2. The parties’ respective time estimates

Confirm how long opposing counsel anticipates their case presentation will take, including the witnesses they intend to present and a summary of their anticipated testimony.

3. Whether the parties will stipulate to admit declarations and exhibits

Discuss whether the parties can stipulate that:

• Declarations may be admitted subject to cross-examination, and

• Exhibits (e.g., bank statements, emails, text messages) may be admitted without foundational proof.

These stipulations conserve the limited hearing time—particularly important when your client requires immediate relief. Most initial RFO hearings are limited to approximately 20 minutes unless the judge sets a long-cause hearing. Given current backlogs, it may be months before a continued hearing is reached.

Therefore, consider how urgently your client needs relief when deciding whether to submit your RFO on the pleadings or seek to continue the matter for live testimony.

If you wish to present live testimony from witnesses at the RFO hearing make sure to follow California Family Code § 217. California Family Code § 217 requires (for non-party witnesses) that you file and serve prior to the hearing a witness list with a brief description of the anticipated testimony. Further, ensure the witness you wish to examine appear at the hearing by serving either a notice to attend (for parties) or a subpoena (for non-parties) to ensure their appearance.

Finally, for a more detailed discussion on meet and confer practices prior to RFO hearings, please see my article here: http://www.colemanfamilylawyer.com/articles/turning-conflict-into-clarity-why-meet-and-confer-matters-in-family-court.

At the RFO Hearing

Once you are at the RFO Hearing, the important procedural question is whether the matter will proceed by live testimony under California Family Code § 217 or whether the matter will be submitted on the pleadings. This determines how your declarations must be admitted.

1. If the RFO hearing is proceeding by live testimony:

• Your declaration is not automatically admitted into evidence just because they are served and filed. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1269-1271). In order to admit it into evidence you must either stipulate to its admission, offer the declaration into evidence during the evidentiary hearing, or present the testimony orally through the declarant at the hearing. (Ibid.)

If you do none of these, the judge cannot rely on the declaration.

2. If the RFO hearing is proceeding by submission on the pleadings:

• The judge may decide the matter based on declarations alone through either stipulation or the judge finding good cause under California Family Code § 217 to refuse live testimony. (California Family Code § 217) California Code of Civil Procedure § 2009 allows an RFO hearing to be decided based on declarations as an exception to the hearsay rule. (In re Marriage of Deamon (2019) 35 Cal.App.5th 476, 480-486)

Conclusion

Mastering the evidentiary rules that govern RFO declarations is not just a matter of technical compliance — it is one of the most effective ways to advance your client’s case. When you understand how Family Code § 217, Rule 5.111, and CCP § 2009 interact, you can anticipate the court’s procedural posture, avoid surprises at the hearing, and ensure the judge can rely on the evidence you intend to present. Thoughtful preparation at each stage of the RFO process doesn’t just strengthen your advocacy; it builds credibility with the court and improves outcomes for the families you serve.