Evidence

Evidence is information given to the court to help prove or disprove something in your case. Examples include documents, photos, audio or video recordings, emails, and text messages. Testimony is also evidence.

In Family Court, all evidence must be:

• Relevant: Related to the case and helps prove or disprove an important point. For example, child support records are relevant in a child support case.
• Competent: Legally admissible and from a reliable source. See below for more on this.
• Material: Directly related to an issue in the case. For example, a pay stub is material in showing your income.

The judge, referee, or support magistrate in your case will decide what evidence is admissible, or allowed, under the rules. This guide will help you understand these rules and how to present your evidence.

In Family Court, you usually have to lay a foundation for any evidence you want the court to consider. This means you must:

• Authenticate the Evidence
  You or your witness must show that the evidence is what you say it is. This means explaining:
  • What the evidence is (for example, a text message or receipt)
  • Where it came from (for example, from your phone)
  • When it was made or sent (for example, the date and time on a receipt)
  • How you or your witness know it’s real (for example, you recognize the email address)
    
• Show Why the Evidence is Relevant
  You or your witness must explain why the evidence matters in your case. After you lay the foundation, you must ask the court to admit the evidence into the record. The other party can object. If evidence is not in the record, the court will not consider it when deciding the case or on appeal.

Q: Do you know what this document is?

A: Yes.

Q: What it it?

A: A printout of a text message I received from the respondent.

Q: When was the text message sent?

A: On July 1st of this year.

Q: How do you know this is a text message from the respondent?

A: I recognize her phone number.

Q: Is this a fair and accurate representation of the text message?

A: Yes.

Q: Does the text message appear to have been altered in any way?

A: No.

Hearsay is usually not allowed. Hearsay is a statement that someone else made outside of court that you want the jurist to believe is true. Statements can be verbal (spoken), written (like documents), or nonverbal (like a head nod or gesture). Here are examples that could be hearsay:

• “Her boss told me she makes $15 per hour.”
  The boss may need to testify, or you may need other proof of this, such as a paystub.
  
• “The police told me to get an order of protection.”

Note

There are exceptions to hearsay. See our guide on “Objections.”

• Print messages or screenshots
  Be sure to include details, such as the date, time, sender, recipient, and subject line (for emails).
• Bring at least 3 copies of every document, photo, or message for any in-person hearings.
  Usually, one copy is for the court, one is for the other party, and one is for yourself. You may need more copies, depending on who else is involved in your case.
• Plan ahead for audio or video recordings.
  Ask the court how to submit the recordings (for example, USB flash drive or email). Be sure the recordings can be seen and heard clearly. You will need to play the recordings in court.
  
• Be ready to explain why your evidence matters.
  Remember, the court can still consider evidence even if it is blurry or hard to hear. You can argue that this goes to the weight, not the admissibility of the evidence. This means the court can still use the evidence but will decide how helpful or believable it is.

Tip

Before the trial, you can ask the other party if they will agree to let certain evidence in. This can save time!

Certain types of evidence have special requirements to be admissible:

• Court Records: The court can automatically accept certain documents, such as court orders or child support records. This is known as judicial notice.
• Photos: In addition to laying a foundation, you or a witness must testify that the photo fairly and accurately shows what is in the picture. In other words, you must show that the photo has not been cut off or changed.
  For example, you might say, “This photo fairly and accurately shows the car that the other parent was driving.”
• Emails or text messages: To use these, you must:
  • Prove they are real. Here are some ways to do this:
    • Take screenshots or use phone records that show the dates.
    • Have the sender or receiver testify about when and how the messages were received.
    • Show phone numbers, email addresses, or dates to prove where the messages came from. With text messages, you may want to remove names and replace them with phone numbers instead.
  • Explain why the messages are relevant.
    For example, if your case is about unpaid child support, the messages might show the other parent admitting to not paying you. Or, in a custody case, the messages might show that you spoke to the other parent about an important issue, like taking your child to the doctor.
  • Important: Include the entire conversation, not just one part.
• Receipts: You must explain when and where the receipts are from. Then explain why the receipts matter. For example, a daycare receipt can show child care costs.
• Audio or Video Recordings: You or your witness must explain:
  • When and how the recordings were made; and
  • That the recordings fairly and accurately show what happened.
• Business Records: These include documents, records, reports, and data made by a business or agency. Examples include bank records, credit card statements, school records, and hospital records. To use these, you must show that the records:
  • Are accurate copies of the originals;
  • Are kept as part of regular business; and
  • Were made close to when the event happened.

The records usually must include a certification that they meet these requirements. The certification must also state that the person certifying them has the authority to do so. In some cases, you may need the person in charge of the records to testify about them.

You may need a subpoena to get business records. A subpoena is a court order requiring witness testimony or specific documents to be given to the court. For more information, see Family Legal Care’s guide on “Subpoenas.”

Family Legal Care offers free legal information and advice on New York family law and court procedure. Call our Helpline at 212-343-1122 or visit our Get Help page.

This document only provides legal information and should not be considered legal advice. If you are seeking advice, please consult with an attorney. Family Legal Care does not provide people with legal representation and no attorney-client relationship has been established through your use of this document. Family Legal Care encourages all individuals involved with the Criminal and Family Court systems to consult with a lawyer.