Congratulations to our family law associate, Johnny Beski, who drafted the winning appellate brief at the Colorado Court of Appeals, which overturned the trial court’s dismissal of a child support case after failing to allow a witness to testify by telephone. Before joining Graham.Law last year, Johnny worked for the El Paso County Child Support Services and this case arises from his time there.
The case, S.C.,1In the Interest of S.C., 2020 COA 95. concerned remote testimony, or a telephonic court appearance, in an interstate child support case. Family support cases are governed by the Uniform Interstate Family Support Act, known as UIFSA (See C.R.S. 14-5-101 et. seq.). This uniform law, which also exists in all other states, is designed to streamline and standardize the process by which parents can obtain child support.
In S.C., another state had asked Colorado to establish child support, for the child, ,S.C., who lived in that state. To establish child support, paternity for the child first needed to be established. The El Paso County Child Support Service had identified a potential father in Colorado, and served him with a petition for the establishment of paternity. However, as a practical concern, paternity cannot be established in court without the testimony of the mother as there are multiple ways to establish paternity, and only the mother is in a position to know all the men who may be at issue.
Testimony by Telephone Discretion Of Judge
Colo. R. Civ. P. 43(i) gives a trial court discretion to testify by telephone at a hearing, providing a list of factors for the judge to consider. And in S.C. the mother was out of state and requested to testify by telephone.
However, for UIFSA cases, C.R.S. 14-5-316(f) requires a court to permit telephonic court appearance for an out-of-state witness in a child support proceeding:
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.
Despite this statute, the court exercised its discretion under Colo. R. Civ. P. 43(i) to deny the mother’s request to testify by telephone based solely upon the fact that she had an outstanding arrest warrant here in Colorado. When the mother refused to appear in person, rather than allowing a telephonic court appearance the court dismissed the case, thereby depriving the child of support.
Telephonic Court Appearance Appeal
The original case was presided over by an El Paso county magistrate. When a party disagrees with a magistrate, the first recourse is to appeal the decision to a district court judge. Here, the judge upheld the magistrate’s denial of the mother’s telephonic court appearance, reasoning that she should not be able to benefit from the Colorado Court system while at the same avoiding justice from the very same system.
Johnny and El Paso County Child Support believed that not allowing the mother to testify by telephone hurt the child, and therefore appealed the case to the Colorado Court of Appeals.
Must Permit Out-of-State Witness To Testify Telephonically At Child Support Hearing
The Appeals Court panel agreed with the central telephonic court appearance argument made by Johnny at trial:
Simply put, there is no legal authority prohibiting telephone testimony by mother based on her refusal to appear in person. This is true whether the reason for her refusal to appear in person was based on the existence of outstanding arrest warrants or otherwise.S.C.2In the Interest of S.C., 2020 COA 95, ¶ 15.
In short, UIFSA’s requirement to allow telephonic court appearance by an out-of-state witness in family support cases trumps Colorado Rules of Civil Procedure provision granting the trial court discretion to deny a witness testifying by telephone.
Dismissal “Without Prejudice” Is Appealable Order
This part is a bit technical, but a trial court has the ability to dismiss a matter “with prejudice”, which means it cannot be filed again, or “without prejudice”, meaning that the matter may be refiled, typically after a deficiency is corrected. If the dismissal precludes any further refiling, then it’s appealable.
In this case, the dismissal was without prejudice, but given the denial of telephonic court appearance, the only way the mother could refile was to appear in person, rather than telephonically. The Court of Appeals rejected the argument that since the dismissal was “without prejudice” it was not ripe for appeal:
So far as this record demonstrates, mother will never appear to testify in person or satisfy the outstanding warrants. Thus, by refusing to allow the child’s mother to testify by telephone (or any other means other than in-person testimony), the court prevented, certainly indefinitely and maybe permanently, an adjudication that is mandated by law.S.C.3In the Interest of S.C., 2020 COA 95, ¶ 10.
Always nice to win, so good job, Johnny. And while there is room to criticize a decision which allows someone to be a fugitive from justice with telephonic court appearance, yet still seek child support from a Colorado court, under the law child support is the right of the child, not of the parent, so ultimately the decision is legally sound, even if eyebrow-raising.
FAQ – Telephonic Court Appearance In Colorado Family Court
Do Colorado family law court judges allow telephonic testimony?
Yes. In child support cases, the court must allow an out-of-state witness to testify telephonically per UIFSA, C.R.S. 14-5-316. In all other matters, a judge has discretion to allow a witness to testify telephonically, and will consider the factors under Colo. R. Civ. P. 43(i)(3), including whether the witness is available to testify in person, the cost of in-person testimony, the importance of the issues, and whether the witness’s credibility is at issue.
Can a party participate telephonically in a Colorado family court hearing?
Yes, with permission from the court, a party may participate telephonically in a hearing, including testifying. When a party is out-of-state, courts in El Paso County are fairly lenient about granting motions for telephonic appearance, except in child custody proceedings, where they tend to be stricter and want to actually see the witnesses in person.
What is telephone testimony?
Telephonic testimony means that a witness, or even a party to a proceeding, testifies by telephoning the court rather than being there in person. Once the witness calls in, he/she is treated like any other witness; the judge will swear in the witness, and both parties will have the chance to ask the witness questions.
How can you object to a witness testifying by telephone?
It is possible to object to telephonic testimony, but you have to be quick. Per Colo. R. Civ. P. 43(i)(2), you have to file a response objecting to the motion for telephonic testimony within 3 days. And even then, a court often grants such motions without waiting for that three-day period to expire. File a form JDF 1315 Response to Motion for _____, stating clearly the reasons why you object to the testimony. For general instructions how to file pleadings, see the Do-It-Yourself-Divorce-Guide section of the Colorado Family Law Guide.
Can a witness in a Colorado family law hearing request to testify by telephone?
Yes, but it’s actually the party calling the witness who requests telephonic testimony, not the witness himself/herself. The party calling the witness has to file a Form JDF 1309 – Motion for Absentee Testimony Pursuant to CRCP 43 with the court, along with a proposed order granting the motion, Form JDF 1310 – Order for Telephonic Testimony. The motion needs to state the reason for the telephonic testimony, a detailed description of the testimony, and the documents the witness will refer to.
What are the disadvantages of a telephonic court appearance?
While permissible, Graham.Law only recommends a witness testify by telephone as a last resort. As a witness, it’s harder to follow questions or exhibits, and as a litigant, it’s impossible to whisper to your attorney while appearing by phone.
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