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Re-Post (4/15/12 on Temporary Hearings in Divorce Cases)

by merlin on July 27th, 2015
  • Sumo

Because the issue has become important again, I have looked at the Uniform Superior Court Rule governing the conduct of temporary hearings (Rule 24.5 – it does not appear to have changed since my entry in April 2012).  The only change that I would make to the entry below is to place significance on a different phrase in subsection (B) – “Except by leave of Court,…” – because there are times when care and custody of a minor child is the ONLY issue relevant, and the minor children might have relevant testimony.

The entry is below:

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Many people in Georgia, even in relatively ugly divorce cases, choose to represent themselves (they are often convinced that they are as smart as any attorney, but the fact is that there are specialized rules that govern the proper admission and use of evidence and testimony, and even attorneys themselves might be unaware of these rules when they don’t necessarily practice often in a particular area, or they tend to dispose of the matter without need for the procedures that would otherwise be available).  In an action for divorce, the Court will first establish the rights and obligations of the respective parties at a temporary hearing.  It is important to choose the evidence that the Court can/will hear at this hearing carefully, because there are special rules governing that hearing itself, and the hearing sets the standards for the divorce action overall.

Georgia Uniform Superior Superior Court Rule 24.5 gives the following guidelines for this hearing:

(A) At temporary hearings the parties involved and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court. Any affidavit shall be served on opposing counsel at least 24 hours prior to hearing.

(B) Except by leave of court, the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings; such child/children will be excluded from the courtroom or other place of hearing. When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court. At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court. Upon request, the proceedings in chambers shall be recorded.

There are two things that need to be pointed out to the party that is involved in an action for divorce in Georgia, especially when minor children are involved, and I have put both of these topics in italics in the Court Rule above.  The first important issue to note is that the party themselves will have their chance to say something, if they feel that is wise (remember: a party that testifies is guided by their attorney on direct examination, but they are then subject to cross-examination by the other side’s attorney), and they get to support their allegations/contentions with one additional witness.  That additional witness likely ought to provide the testimonial issue that most needs to be addressed in a case by the party, such as a property issue they are fighting over or an issue of child custody during the divorce.

This second point is relevant to the latter phrase I have placed in italics in the Court Rule above: “the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings”.  This is why it is very important, when the care and custody of minor children is a matter of contention between the parties at a divorce hearing, to make sure that the contentions supporting a party’s views on the child custody issue, or demonstrating the falsity of the contentions of the other party on that issue, are addressed, either by Affidavit (at least, one that isn’t subject to exclusion on the basis of a valid objection) or by use of the additional witness that is permitted under the Rule.

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