Technology is increasing everywhere, including in the practice of family law. Although a video deposition of a witness who is unavailable to testify in court is not a novel concept in some areas of the law, there is no controlling statute which addresses videotaped trial testimony in matrimonial matters. So what happens when a party cannot be present in court for their divorce trial? A recently published case, Pathri v. Kakarlamath, discusses the effective use of technology (video) in matrimonial matters.

In Pathri v. Kakarlamath, the parties came to the United States from India in 2007 and had two children during the marriage. The Husband filed a Complaint for Divorce in 2018 and, shortly thereafter, he returned to live in India. During the divorce litigation, the children were residing with the Wife in Maryland.

Before the divorce trial commenced in June 2019, the Husband filed a motion seeking to testify at trial from India by contemporaneous video transmission because he was unsuccessful in obtaining a visa to travel back to the United States. The trial judge denied the Husband’s application and found that video testimony would hinder the Court’s ability to assess the credibility of the Husband at trial. Ultimately, the Appellate Division vacated the trial court’s denial of the Husband’s motion and remanded the matter back to the trial court for further proceedings.

Although the Appellate Division noted that there is no controlling statute which addresses videotaped trial testimony in matrimonial matters, it looked to other areas of the law in which courts have become more flexible and progressive as to other mediums of witness testimony, which do not require the physical appearance by the witness. Notably, telephone testimony is authorized in guardianship cases when determining whether an individual is incapacitated. Juries who serve in personal injury trials are oftentimes confronted with videotaped testimony of physicians and then must determine the weight and creditability to give to such testimony. Videotaped testimony has also been permitted in certain municipal and criminal court proceedings.
Based on its comprehensive review of New Jersey case law and the federal rules, the Appellate Division declared that trial courts should consider the following factors when faced with a request to appear electronically or by another medium: 1.) the witness’ importance to the proceeding; 2.) the severity of the factual dispute to which the witness will testify; 3.) whether the factfinder is a judge or jury; 4.) balancing the costs of having the witness appear physically rather than in another form; 5.) whether the witness’ inability to be present in court at the time of trial was foreseeable or preventable; or 6.) the witness’ difficulty in appearing in person.

In the event that you are going through a divorce and cannot be physically present to testify during your trial, you should contact a lawyer. You may be able to testify via video rather than live and in person.

By Victoria E. Paone, Esq.*

* (Editor’s note: Victoria E. Paone, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association and Aldona E. Appleton Family Law Inn of Court. Victoria is the recipient of the Middlesex County 2020 Young Lawyer of the Year Award. She limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advise as to the divorce process, comment on recently published family law cases and more. Have a question about your divorce? Please contact Paone, Zaleski & Murphy at 732-750-9797.)