Colorado

Family Law

Family Law

Section 14-5-316 – Special rules of evidence and procedure

(a) The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
(b) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.
(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
(d) Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
(e) Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.
(f) In a proceeding under this article, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this article.
(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this article.
(j) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.

C.R.S. § 14-5-316

Amended by 2015 Ch. 173,§ 23, eff. 7/1/2015.
L. 93: Entire article R&RE, p. 1593, § 1, effective January 1, 1995. L. 2003: (a), (b), (e), and (f) amended and (j) added, p. 1254, § 23, effective July 1, 2004. L. 2015: (a), (b), (d), (e), and (f) amended, (HB 15-1198), ch. 173, p. 552, § 23, effective July 1.

This section is similar to former §§ 14-5-121 and 14-5-124 as they existed prior to 1993.

COMMENT

Note that the special rules of evidence and procedure are applicable to a party or witness “residing outside this state,” substituting for “residing in another state.” This is the broadest application possible because the utility of these special rules is not limited to parties in other states, or in foreign countries, as defined in the act, but extends to an individual residing anywhere. This extremely broad application of the special rules is to facilitate the processing of a support order in this state or elsewhere. This section combines many time-tested procedures with innovative methods for gathering evidence in interstate cases.

Subsection (a) ensures that a nonresident petitioner or a nonresident respondent may fully participate in a proceeding under the act without being required to appear personally. Subsection (b) recognizes the pervasive effect of the federal forms promulgated by the Office of Child Support Enforcement, which replace the necessity of swearing to a document “under oath” with the simpler requirement that the document be provided “under penalty of perjury,” as has long been required by federal income tax Form 1040.

Subsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of the interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA, i.e., local procedural and substantive law should apply. Because the out-of-state party, and that party’s witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision. The intent throughout these subsections is to eliminate by statute as many potential hearsay problems as possible in interstate litigation, with the goal of providing each party with the means to present evidence, even if not physically present.

Subsection (d) provides a simplified means for proving health-care expenses related to the birth of a child. Because ordinarily the amount of these charges is not in dispute, this is designed to obviate the cost of having health-care providers appear in person or of obtaining affidavits of business records from each provider.

Subsections (e) and (f) encourage tribunals and litigants to take advantage of modern methods of communication in interstate support litigation; most dramatically, the out-of-state party is authorized to testify by the full panoply of audio and audiovisual technologies currently available for direct personal communication and to supply documents by fax, email, or direct transfer between computers or other electronic devices. One of the most useful applications of these subsections is to provide an enforcing tribunal with up-to-date information concerning the amount of arrears.

Subsection (f) unambiguously mandates that telephone or audiovisual testimony in depositions and hearings must be allowed. It anticipates that every courtroom is equipped with a speakerphone. In a day when laptop computers often come equipped with a video camera, live testimony from a remote location is not only possible, but almost as reliable as if the testimony was given in person. No doubt a demeanor is better judged in person than by viewing a video screen, but the latter is certainly preferable to only a disembodied voice.

Subsection (g) codifies the rule in effect in many states that in civil litigation an adverse inference may be drawn from a litigant’s silence that restriction of the Fifth Amendment does not apply. A related analogy is that a refusal to submit to genetic testing may be admitted into evidence and a trier of fact may resolve the question of parentage against the refusing party on the basis of an inference that the results of the test would have been unfavorable to the interest of that party.

Subsection (j), new in 2001, complies with the federally mandated procedure that every state must honor the “acknowledgment of paternity” validly made in another state.

Related to Convention: art. 13. Means of communication; art. 14. Effective access to procedures; art. 29. Physical presence of the child or the applicant not required.

For privileged evidence of husband and wife generally, see §§ 13-90-107 and 13-90-108.