Burden of Proof - “Competent Proof” in Family Court Proceedings
The terms “competent evidence”, “competent proof” and “competent, material, and relevant evidence” appear throughout the Family Court Act.[1] If the allegations of a petition for support are not established by “competent proof” the court must dismiss the petition.[2]
“Competent evidence” is used interchangeably with the term “competent proof”.[3] Competency of evidence is a term that is often used as a synonym for the admissibility of evidence.[4]
[1] The term “competant evidence” is found in Family Court Act § 625(a). “Competant proof” is found in Family Court Act §§441, 454 (1), 455 (2) and (5), 458-b (e), 776, 777, 778, 779, 780, 846-a, 1071 and 1072. “Competant, material and relevant evidence” is found in Family Court Act §§ 342.2, 624, 744 and 824. The term “material and relevant evidence” is found in Family Court Act §§ 350.3, 624, 745 and 1048.
[2] Family Court Act § 441.
[3] In Rensselaer Co. Dept. Soc. Serv. v. Cossart, 38 A.D.2d 635, 327 N.Y.S.2d 117 (3rd Dept., 1971) the court held that the evidence presented must be competent. An unsworn statement by an attorney for the Department of Social Services was held not to be evidence.
[4] People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774 (1995); People v Brewster, 100 AD3d 134, 473 NYS2d 984 (2d Dept), aff’d 63 NY2d 419, 482 NYS2d 724; 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:2.
The terms “competent evidence”, “competent proof” and “competent, material, and relevant evidence” appear throughout the Family Court Act.[1] If the allegations of a petition for support are not established by “competent proof” the court must dismiss the petition.[2]
“Competent evidence” is used interchangeably with the term “competent proof”.[3] Competency of evidence is a term that is often used as a synonym for the admissibility of evidence.[4]
[1] The term “competant evidence” is found in Family Court Act § 625(a). “Competant proof” is found in Family Court Act §§441, 454 (1), 455 (2) and (5), 458-b (e), 776, 777, 778, 779, 780, 846-a, 1071 and 1072. “Competant, material and relevant evidence” is found in Family Court Act §§ 342.2, 624, 744 and 824. The term “material and relevant evidence” is found in Family Court Act §§ 350.3, 624, 745 and 1048.
[2] Family Court Act § 441.
[3] In Rensselaer Co. Dept. Soc. Serv. v. Cossart, 38 A.D.2d 635, 327 N.Y.S.2d 117 (3rd Dept., 1971) the court held that the evidence presented must be competent. An unsworn statement by an attorney for the Department of Social Services was held not to be evidence.
[4] People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774 (1995); People v Brewster, 100 AD3d 134, 473 NYS2d 984 (2d Dept), aff’d 63 NY2d 419, 482 NYS2d 724; 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:2.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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