Creating a Family Court Affidavit: An Illustration Using a Common Situation

Family Court Affidavits Explained

A family court affidavit is a written statement of facts made voluntarily by a person and confirmed by that person’s signature; a "sworn declaration" or "sworn statement" as opposed to an "unsworn declaration" or "unsworn statement". In regional business terms, it is the equivalent of an "Statutory Declaration" or "Declaration". If you’ve ever made a "Statutory Declaration" or "Declaration" for your government or a bank or other organization, you’ll recognise the process even if you don’t know the terminology. The family court call it affidavits. Basically it is a document by which you confirm something to be true. It usually relates to either facts or impressions. When speaking about facts , it is a statement of fact. When speaking about impressions, it is called a personal statement. So a personal statement says "this is how it was for me", whereas a statement of fact says "this is what I assume to have happened". In private family law contexts, the latter type of statement, called a statement of truth, would be referred to as witness evidence and tends to be regarded as more useful in terms of convincing a judge. It is more like making a witness statement than a personal statement. Hence, when writing your affidavit, it is more useful to phrase your statements in terms of "these are the facts" rather than "this how it was". That way it will be taken more seriously than in terms of "how it was" and this will lend it more weight in the eyes of the judge.

Key Elements of a Family Court Affidavit

A comprehensive family court affidavit consists of the following components:

• Personal Information: The individual filing the affidavit must include their full name, address, and contact number. A signature is required in the presence of an authorized legal representative.
• Subject Matter: This component addresses the issue the affidavit is intended to resolve—in this case, the visitation process.
• Declaration Under Penalty of Perjury: Most affidavits require a statement that the individual signing the document is providing a truthful representation. A false affidavit could result in a contempt charge.
• Facts: Finally, the affidavit must include your reason for the request.

A well-written family court affidavit could go a long way to supporting your case in a child custody issue. For example, if you are seeking a modification of an existing court order, personal information and specific reasons for the change would be required in the affidavit.
Depending on the case, other elements may be required to be included in the affidavit. At this point, you have an understanding of what a family court affidavit is. Your next task is to examine a sample affidavit.

How to Draft an Affidavit: A Step-by-Step Process

Crafting a family court affidavit requires careful attention and detail. This section offers a step-by-step guide illustrating how to start with a clear focus and then build the narrative step by step. Along the way, we cover practical tips on telling a personal story or presenting facts with neutrality and how to organize the affidavit to ensure that the reader understands the take-home messages.

• Start with the facts you want to establish. Use these to craft a roadmap for the affidavit. Think of the Atlas Van Lines commercial where a single truck driver speaks in a spare, understated style to describe the delicate process of winding up a clock, removing a statue from a pedestal, or airlifting a space ship. His understated, neutral tone adds power to the scene. The same principle applies to an affidavit. Stick to what happened or what you saw. Give your reader enough information to understand – paint the picture but refrain from inserting unnecessary colors or details.
• Draft a rough version of the "facts" section. Write out the crucial facts first – the facts you would use to forego a trials and avoid a costly and stressful court experience. Draft your "truths" in bullet points if you need to and then fill in the blanks or add information necessary to stitch them together. With this section all together, review it to make sure you haven’t lost objectivity. Don’t dwell on your feelings too much. And don’t allow your own biases to color the memories you present.
• Write a draft of your "background" section. The background section should provide context without going into superfluous detail. Employ the same fact-checking approach here as above. Why are we fighting? Wit’s end re: resisting PO issued based on mother’s false allegations. Attempted PMCC interview with child denied by mother. Has child been interviewed by police referring (false) report that father attempted to abandon child at school? Other examples that show aggrieved parent’s attempts to show mother what she is doing to child/attempt reconciliation. Examples of father begging mother to allow child out with him for dinner or recreational activity or as a member of his extended family; begs/pleads with mother to submit to counseling to help with depression; begs with mother to allow father to go to kid’s events etc. Technical note: This is an 86 page document that is trying to do everything at once, but is essentially a motion to change, a motion for penalties, and some other things as well. I want to caution readers not to ask the Court for too much in one motion. The more arguments you try to push through, the less impact the entire document will have. Editing your motion, while at times painful to do, is a must. Your positions will be stronger and the judge’s perception of you will be more positive.

Avoid These Mistakes When Drafting an Affidavit

While affidavits are important legal documents, they are often among the first drafting materials novice or self-represented litigants will encounter. Errors in the preparation or presentation of an affidavit can lead to lengthy delays or even an inability to properly present your case to the family court. The information below outlines some of the most common mistakes made in the preparation of an affidavit. Paying particular attention to these pitfalls will help you ensure your affidavit is as effective and as persuasive as possible.

• Self-serving content. The most common error in the preparation of an affidavit is the overuse of self-serving language. In essence, this means authors of affidavits sometimes suggest their opinions to be fact, rather than stating the facts clearly. For example, instead of stating that the father is "not involved in our child’s life," clearly state the facts: the father has not asked to see the child for three months.
• Lack of supporting evidence. Any claims made in an affidavit should be supported by evidence. For instance, if you are claiming that the other parent is unfit to have visitation rights because they have a drug problem, you should include evidence of drug possession charges, if available. In addition to police records, sources of evidence may include employer contact information, school contact information, witness information, text message records and more. If your account of the facts is clear and concise, and you back it up with evidence, your position is more likely to be validated by the court.
• Inaccurate dates and times. Whenever you write about an event in an affidavit, always cross-check the dates and times before you file the document in court. If you are relying on the dates of a police report, for example, be sure you understand the timeline of events before putting it down as an important fact in your affidavit.
• Attaching documents that will not be considered. As mentioned above, an affidavit should not rely heavily on other documents. However, it is still important to attach documents that are relevant to the case and explain how those documents are important to the issue you are outlining in your affidavit. At the same time, some documents cannot be considered as evidence by the family court. These may include credit reports or medical records. Understand the type of material you can and cannot provide to the court. When in doubt, work with an experienced lawyer on which supporting documents to include.
• Failure to file on time. Every family court matter has strict timelines for the exchange of documents and evidence. If you fail to file your affidavit with the court on time, you may have to file an application to extend the due date. If the court denies this application, you may lose your ability to fully present your case at your family law hearing.

A Sample Family Court Affidavit

To illustrate the importance of a well prepared affidavit, consider the following example. The structure of this example is standard, although the contents are fictional:
AFFIDAVIT OF PETER HARRIS

• My name is Peter Harris. I lived at 185 Coney Blvd. in Coney Island, New York (the "Coney Island Address") until May 2015. From May 2015 to present, I have lived at 1334 Broadway Ave., Brooklyn, New York (the "Brooklyn Address"). I have lived at my current address for over two years.
• I have known Peter Ashley for over fourteen years. Peter Ashley and I grew up together in the same neighborhood.
• I have been married to my wife, Ellen Harris ("Ellen"), for over five years. We were married on June 14, 2012. Ellen and I currently live at the Brooklyn Address with our three sons, Alexander Harris ("Alex"), William Harris ("Will") and Max Harris ("Max"), who were born on January 10, 2013, April 19, 2015, and April 18, 2018, respectively. A true and correct copy of our marriage certificate is attached herewith as Exhibit 1.
• I have two (2) older sons from a previous marriage: Andrew Harris, who was born on March 14, 2006, and Daniel Harris, who was born on May 13, 2008. I divorced their mother, Sarah Harris ("Sarah"), on September 9, 2008. A true and correct copy of my divorce decree , evidencing that Sarah and I divorced on September 9, 2008 and that I received custody of Andrew and Daniel, is attached herewith as Exhibit 2.
• I have been employed at Ocean View Marina since 2007 as an Auto-Mechanic’s Assistant. My work schedule is 8AM to 6PM, Monday to Friday. On weekends, I work as a Boat Mechanic from 1PM to 7PM and as a Boat Janitor from 7PM to 11PM. My current salary is $50,000 per year.
• When I married Ellen, I obtained sole legal and physical custody of Andrew and Daniel. Sarah has limited visitation rights under the supervision of a family member, Sophia Green. On occasion, she has missed or cancelled her visitation rights.
• On August 9, 2017, my cousin Peter Ashley was arrested for sale of marijuana and illegal possession of a firearm. Since Peter’s birthday is August 9, my sons, Alex, Will and Max were not aware of Peter’s arrest until the morning of Saturday, August 10, 2017 when Ellen informed me of a news alert she read online.
• I believe that our sons, Alex, Will and Max have been traumatized by Peter Ashley’s arrest. They watched the news with Ellen on the morning of August 10, 2017 and asked numerous times whether the police would arrest me too.
• I believe that Alex, Will and Max require counseling for their mental health.

Affidavit Writing Tips

• Accuracy Matters: Before you even sit down to write your affidavit, make sure that you have all of the information necessary to answer the questions you will be responding to. Even if you are trying to be helpful, leaving out important information may only complicate the issue further.
• Be Clear and Logical: Use plain language and try your best to keep your account of the events in sequential order. The judge may be assessing your credibility based on how clearly you’re able to recount the facts and reasons for your request.
• Limit Yourself: If possible, stick to what is necessary to the matter being decided. It can be very easy to step out of bounds in this regard, especially when another aspect of the family dispute is related to the issue at hand. This could make the situation harder for either side and muddy up the legal process as a whole.
• Stick to the Point: A point made is a point finished. Once you have dealt with an issue, move on to the next. Remember, it’s natural to be as exhaustive as possible, but a lengthy affidavit isn’t the best affidavit — unless your intention is to make the judge fall asleep. Leave enough information to convey the message, but don’t baffle them with a 10-page monologue.
• It’s Not Personal: If you’re considering making an emotional appeal to the judge, do yourself a favor and think again. This is not a syntax or sociology paper; this is, not surprisingly, a legal document. An emotional argument wrapped up in legalese is a forceful way to be deemed lacking "credibility".
• Double Check Your Work: A typo can be fatal to a case. No matter who you are or what your position is, be sure to do a final read-through before you submit.

Find Help Preparing an Affidavit

Once you have done your research online, you may still need help with your application for a family court order. A lawyer can provide much-needed assistance. Some lawyers offer fees on the sliding scale of your income; this can make it easier to get legal assistance. If there are no legal aid lawyers available for your case, you can also find lawyers who offer a free 30-minute phone consultation . The lawyer may be able to update your affidavit and provide you with tips if you have already drafted your own affidavit.
You can also get assistance from non-profit organizations such as the Family Law Information Centre at your local court house or a community legal clinic in your area.
Information about the Family Law Information Centres, clinics and other legal resources are available through the Ministry of the Attorney General’s Family Law website.