The Importance of Affidavits in Motion Practice

Most of the time parties appear in court, it is for a motion hearing rather than an evidentiary hearing. an evidentiary hearing is basically a trial where testimony is taken from witnesses and exhibits are introduced to the court through the testimony that supports them.

In a motion hearing, exhibits are admissible but are submitted to the court through affidavits prior to the actual hearing. It is not proper to submit exhibits at the hearing itself, though sometimes the court will allow it.

The affidavit itself is important in a motion hearing. Just as exhibits that are not attached to affidavits are not supposed to be considered by the court, any topics that are not mentioned in the affidavits are not supposed to be brought up in court or considered by the judge. The court can only rule on formal motions brought before it, and the affidavit gives the supporting information for those motions.

This is good to keep in mind when you want to make sure the court considers something as well as when you want to limit what will be discussed in court. Of course, judges have discretion in family court and can determine if they want to hear additional information. However, based on the rules of court, no additional information should be considered by the judge.