How to Draft a Declaration in California

When a person has information relevant to a case being heard in court, they don't always have to rush down to the courthouse. Sometimes a written statement setting out the information is sufficient. When a witness wishes to give information to a California court using a declaration, several rules must be followed.

When someone declares something, they make a statement. If that statement is intended to provide evidence or first-hand information to a court of law in California, the statement is termed a declaration and must be made under penalty of perjury. It is a written statement of testimony that the person could and would give to the court if they were called as a witness.

In California, a declaration is sometimes sufficient for court purposes. The witness writes, signs and submits a declaration and they have done all that they need to do. If what they have to say is not controverted or controversial, it may stand without any further action. At other times, a declaration is appropriate for preliminary procedures, then the court or attorneys for the parties can opt to ask the person to appear at a court hearing to answer questions about their statement.

Declaration testimony is used frequently in overburdened family law courts in California, in matters of child custody or family or child support. Sometimes a family court judge will decide a case upon written declarations alone, without requiring any in-person testimony. Since the COVID-19 pandemic has forced many family law hearing to be heard remotely, it is difficult for judicial officers to arrange for witnesses to give live testimony.

In California family courts, declarations are not limited to witnesses presenting evidence. A party to a divorce, for example, may need to write a declaration to present their side of the story, give background, explain what they are seeking, and to oppose the other party's declarations, in addition to providing facts from personal knowledge. If a party is filing or responding to a Request for Order in a family law case, they must attach a declaration explaining the request and laying out facts that support it.

Anyone who would be competent to testify at court is competent to sign a declaration. That means, generally, that the person must be of sound mind and not incompetent. It is also important that the individual has personal knowledge of a matter pending before the court.

Note that while a declaration must be made under penalty of perjury, it need not be signed before a notary. An affidavit is similar to a declaration, but it must be signed under penalty of perjury before a notary.

A legal declaration does not have any specified form or template. Family court rules limit the length of the declaration to 10 pages or less, and the "penalty of perjury" statement usually comes at the end. It states that the individual declares under penalty of perjury under the laws of the State of California that the information they have given is true and correct. Many declarants use a court form (MC-30) to make their declaration, but this is basically a blank page with the penalty of perjury language at the end. That means that the individual making the declaration gets to write their information in the rest of the pages.

While there are no rules about how to start a declaration, most begin with an introduction of the person making the statement. A party to a court proceeding needs to identify which party they are (plaintiff or defendant) and state up front any requested court orders being addressed with the declaration.

A declarant who is a witness, not a party, must supply their name and relationship to the proceeding. Every witness making a declaration should state up front that they have personal knowledge of the facts they are declaring and that they would testify to those facts if called to court.

Anyone writing a declaration is best served to put emotions to one side and provide a factual statement to the court in clear, simple language. The court does not expect every witness to speak like an attorney, and it is better if an individual simply tells what they know in their own words. It is important to remember that the only testimony a court allows as evidence is testimony about which the declarant has personal knowledge.

What does the personal knowledge requirement mean? It means that the person making the declaration can relate anything they saw, heard or actually witnessed. However, relating matters that they heard as a story from somebody else is called hearsay and is not permitted. For example, an individual can make a declaration that they saw spouse A hit spouse B three times and give the dates and times. They cannot make a declaration saying that they heard from their best friend that spouse A hit spouse B. That is inadmissible hearsay.

When writing a declaration, an individual should stick with facts and avoid conclusions. A declaration that states that spouse A is a horrible person will not be admissible nor persuasive since it only reflects one person's opinion. It is better to stick to the underlying facts, describing exactly what the individual witnessed and when they witnessed it. The court will form their own conclusions.

If there are documents or photographs that back up the facts being presented, it is a good idea to attach them to the declaration. For example, in the example of Spouse A hitting spouse B, if the witness happened to take a photo of the assault, they could attach it to the declaration.

It is more common to attach documents as declaration exhibits. The individual simply describes the document in the declaration and states that a "true and correct copy" is attached to the declaration as Exhibit 1. For example, if an individual is preparing a declaration of income and expenses in family court in California (FL-150), the form calls for various financial documents to be attached as exhibits.