Perjury is certainly a problem that family law litigants face. It is agreed that there should be a mechanism for curbing perjury and sanctioning litigants who perjure themselves.

This recommendation suggests that litigants have the opportunity after a court order has been made to prove by clear and convincing evidence that the other side knowingly or fraudulently misrepresented an essential piece of evidence. Further, in order to get any of the stated relief (set aside of order, sanctions, attorney fees and costs, costs for time off work) the litigant must show that the misrepresentation caused measurable damage to him/herself.

The manner in which this recommendation is written does nothing to curb or punish the litigant who perjures him/herself in real time. This recommendation does not provide a mechanism that a litigant can use during the pendency of a motion to deal with the misrepresentation. It is designed so that the sanctions, etc. are sought after a court order is made.

This approach is problematic for two main reasons (1) punishing the behavior after the hearing requires that there be an additional motion filed, hence, more litigation, and (2) in the case of a custody/visitation decision based on misrepresentations on which the court relied (i.e. an essential piece of evidence), a custody/visitation order would have presumably gone into effect before a perjury motion could be prepared, filed and heard by the court. Assuming the parent could prove the legal standard set forth in the recommendation, and the court order was set-aside, the children would potentially suffer from the instability caused by the dueling orders.

Perjury should be dealt with at the time that it occurs, whenever possible, to avoid (1) additional attorney fees or time lost at work to litigate a new motion, and (2) orders being made on misrepresentations that can later be set-aside.

Jennifer Kelleher

Directing Attorney

Legal Advocates for Children & Youth

San Jose, CA