Late Disclosure of Evidence in a Child Custody Case

Excluding Evidence Disclosed Late in a Child Custody Case in Arizona.

A court will schedule deadlines for both parties in a child custody case to disclose the evidence before a child custody trial. So, what happens when a party to a child custody case discloses information late and after the court’s disclosure deadline. More importantly, can the court exclude evidence disclosed late in a child custody case in Arizona?

In the prior case of Hays vs. Gama, the Arizona Court of Appeals overruled a trial court that precluded evidence from a child custody trial as a sanction for contempt of court. However, the Arizona Court of Appeals distinguished the ruling in Hays vs. Gama in the published decision of Johnson vs. Provoyeur.

In the Johnson case, the mother failed to disclose a supplemental report from a child custody expert by the date set by the court for final disclosure of all evidence in the case.

To further compound the problem of the mother’s late disclosure of the supplemental report, neither mother nor her counsel informed the court, informed opposing counsel, or informed the husband the expert was preparing a supplemental report prior to disclosing the report after the disclosure deadline. The husband filed a motion with the court seeking to exclude it from evidence at the upcoming trial. In doing so, he argued he was prejudiced by the late disclosure.

Prejudice may be demonstrated by informing the court of the steps you would have taken to prepare to cross-examine the expert witness, such as the scheduling of her deposition, or other steps you no longer have the time to do because of the late disclosure. The trial court ruled that the supplemental reports and testimony about the supplemental reports were to be excluded as evidence at the trial. Mother appealed that ruling citing the case of Hays vs. Gama as precedent.

In ruling on the mother’s appeal, the Arizona Court of Appeals noted that Arizona Rule of Family Law Procedure 65(C)(1) stated that a person who fails to timely disclose information “shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or in support of a motion, the information or the testimony of a witness not disclosed, except by leave of the court for good cause shown”.

The Court of Appeals ruled that the mother’s late disclosure was prejudicial to the father because he was not provided a fair opportunity to obtain the expert’s notes, to take her deposition, or to give his expert enough time to prepare a rebuttal report.

It is important to take note of the court of appeals’ use of the terms “fair opportunity” in this opinion. The Court of Appeals did not have to conclude that it was impossible for the father to have done these things in response to the expert’s supplemental report but, instead, only that he did not have a “fair opportunity” to do so.

Precluding Use of Evidence Disclosed Late Versus as a Sanction for Contempt

The Arizona Court of Appeals then distinguished the ruling in this case from the ruling in the Hays vs. Gama case. The court in the Hays case precluded relevant evidence at a child custody trial as a sanction for the parent’s contempt of a court order in that case and not, as in this case, because a parent disclosed evidence late.

The Court of Appeals distinguished the improper exclusion of evidence as a sanction from contempt from the exclusion of evidence in this case due to the late disclosure of evidence and the prejudice that late disclosure placed upon the father, so long as preclusion of the evidence does not result in “potentially significant information from being considered in the child custody determination”.

The Arizona Court of Appeals, in this case, concluded that excluding the evidence in the supplemental report would not have a significant impact on the mother’s ability to present evidence on the child custody issues and, therefore, the exclusion of the evidence was proper.

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Chris Hildebrand

Chris Hildebrand wrote this article about late disclosure of evidence in a child custody case to ensure everyone has access to information about child custody laws in Arizona. Chris is a child custody and divorce attorney at Hildebrand Law, PC. He has over 24 years of Arizona child custody and family experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a child or family law case.