Writing a Motion with an Affidavit
FOUNDER’S NOTE: My strategy changed a little since Lessons 9-10. I decided to combine the motion and affidavit, and renamed my document, “VERIFIED MOTION AND AFFIDAVIT TO MODIFY PARENTAL RESPONSIBILITIES.” I also decided to include a very comprehensive EXHIBIT BOOK, which contains 280-pages of documentary evidence, since this is my last shot at justice in Colorado’s family courts. And attached to the motion are a SETTLEMENT AGREEMENT and a STIPULATION WITH RESPECT TO PARENTAL RESPONSIBILITIES that my ex-wife will need to sign to save herself and her sisters from multiple civil and criminal complaints.
See the motion and affidavit, proposed orders, agreement and stipulation here.
See Exhibits CO-1 to CO-5 here.
[Exhibits A1-A7 and B1-B5 will be posted on a later date.]
As covered in the last lesson, many states have fill-in forms for family law matters. But, because my youngest child is 17-½ years old and I am a thousand miles away, I wanted to show the judge that I have evidence to prove my claims, in the hopes that my ex-wife will settle the matter once and for all, or that the judge will rule in the case without an evidentiary hearing.
Okay, now a little about affidavits. An affidavit is a written statement made under oath. It can be sworn to (signed) in front of a notary, or often times in front of a court clerk or any other official with authority to administer an oath. But this requirement is being phased out, and so I signed my motion and affidavit “under penalty of perjury” pursuant to 28 U.S.C. § 1746, which is a fairly new federal law eliminating the need to pay a notary to witness your signature.
A more detailed definition is that an affidavit is a written statement made under oath that some fact – or in a case like mine, a set of facts – is true and correct to the best knowledge of the affiant. For the record in my case, I stated in the preamble (just after the caption on the first page) that I have “first-hand” knowledge of the facts, that I have evidence to prove the facts, and that I am “competent to testify,” which means that I am over 18 years of age and of sound mind.
Then, in numbered paragraphs, the facts relevant to the matter at hand are stated in short, concise sentences. Normally in an affidavit, you should avoid using conclusive statements, as I did starting in paragraph 18, which is fine in my case because each conclusion was drawn on a pertinent set of facts in the referenced exhibits. I essentially wrapped my affidavit around all my factual allegations in my exhibits by incorporating my Exhibit Book in my motion and affidavit in paragraph 17.
Typically, an affiant would simply testify on paper to what they witnessed. For example:
- On May 3, 2015, I was at the Corner Bar in St. Paul with my friend Bill from about 7:00pm to 11:00pm.
- Bill and I were seated at a small table facing each other.
- At about 11:00pm, the defendant tripped on the back of Bill’s chair and fell to the floor.
- The defendant got up and hit Bill in the back of his head with a closed-fist.
- Bill’s head was bleeding, so I walked him to the hospital just down the street.
If the affiant uses all sorts of conclusive statements, as the following example depicts, he or she will likely be challenged by opposing counsel:
- On May 3, 2015, I was at the Corner Bar in St. Paul with my friend Bill from about 7:00pm to 11:00pm.
- Bill and I were seated at a small table facing each other, just minding our own business.
- At about 11:00pm, the defendant was on his way to the restroom or something and must have tripped on the back of Bill’s chair, sending him tumbling to the floor.
- All of a sudden, the defendant rose up like he was mad at the whole world and, with every bit of his strength, hit Bill in the back of his head like he was a professional boxer.
- Bill’s head was bleeding profusely, so I walked him to the hospital just down the street.
Affidavits should contain only statements that you would be willing to testify to under oath on the witness stand in court. Can you see how the affiant in the second example would have his credibility destroyed by opposing counsel? “So, you’re telling this jury that Bill’s head was bleeding profusely, but you were okay with walking him to the hospital?”
Similar to the Statement of the Case section in a complaint (see Lesson #6), an affidavit should contain just facts. Leave all emotion and feelings out of it. Try not to use adverbs or adjectives; and limit your use of conjunctions such as “and” or “or” between phrases, because if any part of your statement is untrue, the whole statement can be denied.
If your affidavit is to be filed in a particular case, like mine, put it on a court document under the caption (see Lesson #3). If you are providing an affidavit for the police or for someone else, title it, “Affidavit of [Your Name]” and then in the opening paragraphs, identify yourself, like this:
- Your affiant’s name is John Doe.
- Your affiant’s address is 123 Any Street, Any Town, MN 00000.
- Your affiant’s date of birth is January 1, 1961.
It is okay to use “I” and “my” in a family law matter, but when using an affidavit for any other purpose, it is advisable to use “your affiant” like in the example above.
Affidavits are powerful. They tell the officers of the court that you witnessed something important to the cause of justice, that you have firsthand knowledge of the facts, and that you are telling the truth “under penalty of perjury,” which carries the punishment of jail-time.
I will be doing more research on affidavits when I have time, as I plan to use them in all my court documents from this point on. In the present matter, if my ex-wife fails to settle pursuant to the terms of my Final Settlement Offer on page 5 of the motion, I will be attaching affidavits to multiple civil actions against her, and I will also be attaching affidavits to multiple criminal complaints to the courts and to demands for investigations to local law enforcement and child protective services.
My ex-wife has never acted in the best interests of our children, so I will not hold my breath and will begin preparing my civil and criminal complaints against her. The subject matter of the next Lesson Series will likely be: suing for damages caused by parental alienation; however, I may need to sue her and her attorney first to reclaim my real estate and personal property.