The Family Law Leader

Q: I am involved in a custody case. My children's therapist says that he will testify regarding the best interest of my children. However, I cannot afford to have him appear live at the courthouse. Can I simply submit a letter from him to the judge regarding his opinions in my case?

A: I have had lots of clients ask this question. The short answer is, probably not. The only time this would work is if the other party's attorney agrees to stipulate to entering the letter into evidence as an exhibit. If the other attorney objects, a letter will probably not be accepted as evidence by the court, as it is excludable under the hearsay rule. Even a written statement, such as a letter from a doctor or therapist, will in most cases be considered hearsay by the judge.  People sometimes ask if having the statement notarized will make any difference. Unfortunately, notarization will do a little to avoid the hearsay rule. The Michigan rules of evidence define hearsay as "an out-of-court statement introduced for purposes of proving the truth of the matter asserted". The hearsay rule applies to spoken, as well as written, statements. Unless everyone agrees to its admissibility, such a statement will likely be excluded from evidence. The safest route is to have your attorney talk to opposing counsel in advance of the trial and see if they will stipulate to allowing such a statement into evidence. If the attorneys do not so stipulate, then you will probably be required to have the author of the statement come to court and testify. Unfortunately, this can become costly, as physicians and therapists must cancel a large part of their day's appointments to appear at court. So if you are planning on using medical or therapy records or letters from your providers as exhibits in a divorce or custody trial, talk to your attorney first.

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