Sitting down to put all of your wants, needs, and concerns into a succinct, admissible, and persuasive declaration in your family law case can be daunting. You may not even know what a “declaration” is, let alone how to draft a good one!
How to Write a Declaration for Family Court in California
Under certain circumstances, the family court may decide a case partially or entirely upon written declarations alone, without hearing any live testimony. Family law courts are perpetually overburdened in California, so many judicial officers rely heavily on written declarations. This is especially the case since Covid-19 has rendered nearly all family law hearings remote, and made it extremely difficult to have witnesses give live testimony.
Even when there will be oral testimony in your family law case, your declaration is an opportunity to present evidence on your behalf which may serve as an introduction to the case for the judge, a child custody mediator, and/or expert witnesses, such as a court-appointed child custody evaluator.
Your declaration will also be read, re-read, and maybe even memorized by the other party in your case and his/her family law lawyer.
What is a Declaration?
A declaration is your written testimony, made under penalty of perjury. It has the same legal effect as your testimony on the witness stand. Remember that Miranda Right that goes, “everything you say can and will be used against you…”? That applies here, two-fold.
If you are filing a Request for Order (RFO), or responding to an RFO in your family law case, you will need to attach a declaration explaining the basis for your request and the facts that support it.
In a family law case, you may need to write a declaration for any of the following reasons:
- To tell “your side of the story” and give a brief background of the situation, if necessary.
- To explain your requests. Your requests should be your proposed solution for each problem and your reasons for proposing it.
- To provide needed information. For example, provide a description of the current situation or an explanation of each specific problem.
- To respond to the opposing party’s requests or declaration.
Just like oral testimony, declarations are subject to the rules of evidence. In order to make sure that your testimony is not excluded, here is a list of tips to help you draft an effective declaration for family court.
Tips to Write a Declaration for Family Court in CA
#1: Follow the California Rules of Court [DECLARATIONS HAVE A 10 PAGE LIMIT]
California Rule of Court 5.118 limits the length of a declaration (attached to your RFO) to ten (10) pages. Likewise, a responsive declaration to that RFO cannot exceed ten (10) pages.
Sometimes, it can seem impossible to keep your thoughts and concerns about the best interests of your child or the basis for your request for sanctions pursuant to Family Code 271 to less than 10 pages. This is the well-being of your child we are talking about, right? Surely, given the unique facts of your case, the judge would not hold you to this page limit… Wrong. No matter how awful the opposing party is or how egregious your allegations are, the 10 page limit always applies.
Oftentimes, when deciding how to trim down a declaration to comply with the 10 page limit, it is helpful to focus on providing the court with brevity and clarity about the legal issues. Keep in mind that judges appreciate concise calls to action. They are busy and don’t want to have to sift through ten pages if they could have reached the same result in 2 paragraphs.
It can be heartbreaking to delete details and opinions that you find important. Believe me, if family law attorneys can manage to omit their clever turns of phrase and overcome their natural propensity for wordy rhetoric, you too can bring yourself to concisely express yourself to the family court.
Remember, less is more. If you can express yourself in two words, don’t use three!
#2: Use Your Own Words, Write Clearly, and Get to the Point
Family law judges don’t expect you to be well-versed in legal terms. In fact, judges don’t tend to like it when declarations are written in legalese. They want you to get to the point in a clear, concise way and in your own words. Judges want the declaration to be written by you and about you. If they sense some third party wrote the declaration it won’t be seen as credible, authentic or persuasive.
A declaration is intended to simply be a recitation of facts supporting a request, or in response to a request. Keep your sentences short. The court is looking for the who, what, when, where, and how. Try to write naturally, using declarative sentences and active verbs.
It is also best to get all of your thoughts out in the declaration, and then revise it multiple times. The revisions should make the declaration shorter and less inflammatory each time.
Find a disinterested person to read your declaration and let them critique it. Having a fresh set of eyes on the document can be very helpful in pointing out the shortcomings of your presentation. You know what you are trying to say, but you need to make sure your declaration conveys it to the reader.
#3: Avoid Inflammatory Language and Don’t Bash the Other Party
It cannot be stated enough: declarations are supposed to be a recitation of facts! Your opinions about why your co-parent is a horrible person and the scum of the earth who doesn’t deserve to see your child have no place here. This plainly reflects badly on you, and while it may feel good for the moment, it will just annoy the court and hurt your case.
For example, instead of stating: “the mother is an emotionally abusive alcoholic who has never shown an interest in our children,” try “I am concerned about mother’s ability to care for our children in light of her long history of consuming 5-10 alcoholic drinks per day. She becomes quick to anger when consuming alcohol, and on several occasions, our children have become the target of her outbursts.”
You are essentially a reporter, so write as objectively and specifically as possible about events. You may include an explanation of why you took a particular action or are asking the court to make a certain order.
Give the underlying facts, not a conclusion, characterization, or inflammatory opinion. For example, instead of stating that your co-parent was drunk, try: “I observed him/her drink a six-pack of beer over a one-hour period of time. Her/his speech was slurred, her/his face was red, and she/he was unsteady on her/his feet.”
There are ways to make your declaration compelling without including inflammatory soundbites and disparaging the other party or their attorney.
The court wants you to explain yourself in a reasonable manner, showing respect to the court and the opposing party. In fact, if you can’t stand the opposing party, but are still able to communicate your requests or points to the court in a calm, factual manner, it reflects very positively on you and may help your case. The court may see you as a more credible witness and be more likely to believe your side of the story if it comes down to a “he said/she said” situation.
#4: Include Only Truthful Information That You Have Personal Knowledge of
Whether written or oral, your testimony is given under oath. Perjury is a crime, though very rarely prosecuted.
If your litigation is contested, the other side is going to review your declaration with a fine-tooth comb, hoping to discredit you by finding some part that is not true. If you are not certain about something, use phrases like “approximately,” “about,” “to the effect of,” etc. to make it clear that you are reconstructing from memory. Do not color events in your favor, speculate or exaggerate. Indicate whether events are unusual or part of the regular pattern.
Include only information which is based upon your personal knowledge. This means events which you have observed, not those which other people have told you about. Testimony is generally limited to firsthand observations, meaning talk about what you personally saw, heard, touched, smelled, and tasted.
You may include statements made to you by the opposing party, and statements made by third parties when you are not offering the statements to prove the truth of the contents of the statements. For example, if your child told you the other parent doesn’t come home until 9 p.m. on Wednesdays, you can include this in your declaration for the purpose of showing the court the impact of the problem situation on your child or your child’s state of mind, but not to show what time the other parent comes home on Wednesdays.
#5: Consider Whether Your Requests and Demands are Reasonable
Don’t ask for something out of spite, anger, or principal. Including a laundry list of unimportant requests and demands will frustrate the judge, and the more important requests you are making may get lost in the shuffle.
Consider your demands, and ask yourself: which of these will matter to me in a year or two? Is there a way I can remedy some of these issues without involving the court?
Narrow down your demands to the important ones that genuinely require judicial intervention. You may even want to talk to a family law attorney to find out if what you are requesting of the court is reasonable under the law. If you were just released from prison and haven’t seen your child in 5 years, but want to request a sole custody arrangement because you think the other parent is alienating your child from you, your demands may not be possible or reasonable.
It is also important to understand what it is you are asking the court to do (for example, know what the terms legal custody and physical custody mean before you file a declaration seeking orders for custody).
No matter how well reasoned a request is, if the law does not allow the court to grant it, you are fighting a losing battle (and may even get sanctioned for filing a request in bad faith).
#6: Organize Your Declaration [Consider Bullet Points]
Organization is everything and will help you prepare your argument should the matter proceed to a court hearing. Consider using bullet points to highlight your actual requested orders or some of your major compelling points. They are an effective way of showing the court a summary or synopsis of your key positions and points.
#7: Attach Evidence to Back Up Your Points
Provide copies of emails, pictures, pay stubs, school records, text messages, or other documents as exhibits if they help back up some of the points in your declaration. The attachments should be referred to in your declaration, relevant to your case, and be unaltered.
So, for example, if the opposing party is claiming that he/she has no liquid funds but you have a (recent) bank statement proving otherwise, attach it to your declaration. Practice Tip: It is very important to redact all sensitive information, like social security numbers and bank account numbers from any documents you file or lodge with the court.
If one of the issues in your case is that your child is late to school every time your co-parent takes him/her to school, attach school records showing the late arrivals or absences and the corresponding dates.
Even in family court, sometimes pictures can be worth a thousand words. If your co-parent claims that your child is upset by or afraid of you, attach recent (dated) pictures of your child enjoying time with you in a relaxed and loving moment. Don’t flog the court with your whole family photo album, but restrained use of photographs can help the court to see your children as individuals, rather than as generic children.
Providing the court with evidence to back up your claims will up your odds of successfully getting more visitation time with your child or modifying your custody order.
#8: Avoid Repetition
A common literary, and legal, tactic is to repeat a point over and over again to emphasis its importance and ensure the reader remembers it. A declaration is not a persuasive writing assignment, nor is it a legal brief. You have limited space (10 pages), and judges have limited time and patience to read. Wasting words on repeating a point, which may or may not even be a legally significant point, will only annoy the judge.
#9: Use This Free Child Custody Declaration Template Sample
If you are struggling to write a declaration in your family law case regarding custody of your children, use our free child custody declaration template:
#10: Consider Having a California Family Lawyer Review or Draft Your Declaration
It’s very important that the declaration you ultimately submit to the family court is well-organized, and that it contains all of the information needed to make a decision. Don’t feel like you have to handle this yourself. Whether reaching a child custody agreement is your goal, or you want a knowledgeable child custody lawyer to fight for you, contact the attorneys at Talkov Law for help.
We also provide free templates for: