Should I Bring Witnesses to My Divorce Trial?
Bring the ones who saw something themselves, because firsthand knowledge is the line Missouri evidence law actually draws.
That is the short version and it settles most of these questions. A person who watched something happen can usually tell the judge about it. A person whose entire account is what somebody else told them is a different problem, and it is the reason well meaning witnesses get excluded after taking a day off work.
The rest of this page covers which witnesses in divorce cases are worth calling, what they cost, and what to do about the one you are certain will show up.
Who Makes a Useful Witness in a Divorce Case?
Someone with direct knowledge of a fact that is genuinely in dispute.
Before you add a name, ask two questions. What fact would this person prove, and is that fact actually contested. If the other side already agrees about it, the witness is spending your time and money on something you have already won.
Witnesses in divorce cases tend to fall into four groups.
- People who were there. A neighbor, a relative, a coach or a family friend who personally saw the thing in question
- People with records. A teacher, a daycare director, a bookkeeper or an employer who can identify a document and say what it is
- Treating professionals. A doctor, therapist or counselor already involved with the family, as opposed to one hired for the case
- Retained experts. A valuation, vocational or mental health professional, which runs on a separate statute covered further down
Most witnesses in divorce trials never testify, because the case settles first. That is not a reason to skip the work. The list you build is also the list the other side has to answer for.
Why Would the Court Exclude What My Child Told Someone?
Because repeating another person’s out of court statement is hearsay, and Missouri has no statute letting a witness do that in a custody case.
Missouri has never codified a general hearsay rule. Chapter 490 RSMo is the evidence chapter, and its admissibility sections are subject specific, covering business records, court records, marriage records and similar narrow items. There is no general hearsay article in it. Missouri hearsay law is common law, built in appellate opinions rather than written into one rule you can look up.
There is one statute people find and misread. Section 491.075 RSMo creates an exception for a child’s statement. Its own words limit where that exception lives. It reaches a statement by a child “relating to an offense under chapter 565, 566, 568 or 573” and makes such a statement “admissible in evidence in criminal proceedings in the courts of this state.”
Note the last three words. Criminal proceedings. A dissolution or custody case under Chapter 452 RSMo is not a criminal proceeding, and we went through that chapter section by section looking for a matching exception. There is not one.
So the usual version of this answer is right about the outcome and thin about the reason. The reason matters, because hearsay is the most common ground on which witnesses in divorce cases get excluded, and knowing that tells you where to put your effort instead.
How Does My Child’s Own View Reach the Judge Then?
Through three routes the statutes name, and none of them is a parent’s friend repeating what the child said at dinner.
The first is the judge. Section 452.385 RSMo is three sentences long. “The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case.”
Read the second and third sentences again. The interview itself is discretionary, which is the word may. Counsel being present and a record being made are not discretionary. That is the word shall, twice.
The second is a guardian ad litem, who is a lawyer appointed to represent the child’s interests. Under Section 452.423 RSMo that lawyer is directed to “conduct all necessary interviews with persons having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments and attitudes,” and may “examine, cross-examine, subpoena witnesses and offer testimony.” Our page on what a guardian ad litem does covers that role in full.
The third is a court ordered investigation. Section 452.390 RSMo lets the court “order an investigation and report concerning custodial arrangements for the child,” conducted by “the county welfare office, the county juvenile officer, or any other competent person.” The report goes to counsel “At least ten days prior to the hearing,” and the statute then says something people miss. “Any party to the proceeding may call as witnesses the investigator and any person whom the investigator has consulted.”
And the child’s own input is a named best interests factor. Section 452.375.2 RSMo lists “The unobstructed input of a child, free of coercion and manipulation, as to the child’s custodial arrangement.”
Do I Have to Subpoena a Witness Who Already Agreed to Come?
Yes, and it is the most practical thing on this page.
Subpoena everyone, including the ones you are sure about. Witnesses in divorce cases are not bound by a promise made in a kitchen. Testifying about somebody’s divorce is uncomfortable, loyalties get complicated, and people change their minds the week of trial.
Trial subpoenas in Missouri come from statute rather than from a discovery rule. Section 491.090 RSMo provides that “In all cases where witnesses are required to attend the trial in any cause in any court of record, a summons shall be issued by the clerk of the court wherein the matter is pending, or by some notary public of the county wherein such trial shall be had, stating the day and place when and where the witnesses are to appear.” Section 491.100 RSMo then requires that the summons “shall be in the form of a subpoena, shall state the name of the court and the title of the action, the names, addresses and telephone numbers of the attorneys.”
Three details in that chapter are worth knowing before you send one.
- Distance and fees. Section 491.130 RSMo says a witness “shall not be compelled to attend, as such, in a civil suit, at a greater distance than forty miles from his place of residence” unless travel fees and one day’s attendance are paid or tendered when the witness is summoned
- What the fee is. Section 491.280 RSMo allows witnesses “fees for their services in the amount of twenty-five dollars per day plus a mileage allowance determined as provided in section 33.095”
- What happens if they skip. Section 491.150 RSMo allows a person summoned and failing to attend to “be compelled, by writ of attachment against his body, to appear,” and Section 491.190 RSMo permits a fine “not exceeding fifty dollars”
None of that is a threat you make to a friendly witness. It is the reason a subpoena is not an insult. It gives the person a legal obligation to hand their employer, which is often exactly what they wanted.
What About Expert Witnesses in Divorce Cases?
Family cases run on their own expert statute, and it is not the standard most Missouri civil cases use.
Section 490.065 RSMo splits expert testimony by case type. Subsection 1 is the one that governs family court, and it opens by naming its territory, “In actions brought under chapter 451, 452, 453, 454, or 455.” Divorce, custody, adoption, support and orders of protection are all in that list, as are all proceedings with no right to a jury trial.
Under that subsection an expert may give an opinion “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” The facts the expert relies on “may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field.”
Translated. An expert in a divorce case is allowed to build an opinion on material that would not itself get into evidence, so long as experts in that field normally rely on it. That is why a psychological evaluation or a vocational exam can carry information a lay witness could never repeat.
When Do Witnesses Have to Be Disclosed?
Through ordinary discovery, and the limits are tighter than most people expect.
Rule 57.01 caps interrogatories at “no more than 25 written interrogatories, including all discrete subparts,” absent a stipulation, a court order or a local rule. Rule 57.03 requires “not less than seven days notice in writing” for a deposition and requires leave of court once a side would exceed ten depositions. Attendance at a deposition is compelled by subpoena under Rule 57.09, and expert opinions are discoverable under Rule 56.01, which also lets the party doing the asking be required to pay the expert a reasonable hourly fee.
Twenty five interrogatories is not many when you are also asking about income, accounts, debts and a schedule. Our page on discovery in a divorce case covers how to spend them.
What 4 Mistakes Should You Avoid With Witnesses in Divorce?
All four are avoidable weeks before trial, which is the only time they are cheap to fix.
- Trusting a promise instead of a subpoena. The most loyal witness you have is still a person with a job, a spouse and an opinion about being in the middle of this
- Calling someone to repeat what a child said. That is the hearsay problem above, and the fix is a guardian ad litem, an investigation or an in chambers interview
- Calling a character witness with no firsthand knowledge. A witness who thinks you are a good parent but has not seen you parent is not adding a fact
- Waiting until the week of trial. Disclosure, subpoenas, fees and scheduling all have lead times, and a late witness can be a witness you do not get
What Does a Witness Not Decide?
Three things, and mixing them up is where a lot of disappointment comes from.
A witness does not decide custody or property. The judge does, on the factors in Section 452.375 RSMo for children and on the factors in Section 452.330 RSMo for property. A witness supplies facts that feed those factors.
A witness does not testify to the legal conclusion. Nobody gets to take the stand and say who should have custody, and an expert under Section 490.065 RSMo is giving an opinion the court weighs rather than a verdict the court adopts.
And volume is not weight. Six witnesses in divorce trials saying the same general thing is one fact, told six times, at six times the cost. Nobody can tell you in advance which piece of testimony will matter most, and any lawyer who claims to know is guessing.
Who Can Help With Witnesses in a St. Louis Divorce Trial?
The useful help is early, because a witness list is a discovery problem before it is a trial problem.
Bardol Law Firm practices only family law, and we are in the St. Louis County, St. Louis City, St. Charles County and Jefferson County courts regularly. If you are weighing witnesses in divorce and are not sure who is worth calling, bring us the list and what each person actually saw, and we can tell you which ones survive an evidence objection and which ones are better served by a subpoena for records. Our child custody page covers the custody side, our page on whether a divorce trial has a jury covers who is actually listening, and our other family law questions and answers cover the rest.
You should not have to chase your attorney for basic updates while a case is heading for trial. Every client here has a named paralegal on the file, and we generally return calls within one business day.
Family Law, Simplified.
If trial is coming and your witness list is still a group of names on a napkin, that is the right week to talk. Contact Bardol Law Firm or call 314.918.0100.
This page is general information about Missouri law and is not legal advice. Every case turns on its own facts. The choice of a lawyer is an important decision and should not be based solely upon advertisements.