The case of the day is Gyger v. Clement (N.C. 2020). The mother and the father were unmarried and had had a romantic relationship in North Carolina. They had two children, both born in Switzerland. In 2007, the mother brought an action in a Swiss court to establish paternity, and for child support. The Swiss court entered a default judgment against the father, and the Swiss central authority registered the Swiss order with the North Carolina Office of Child Support and Enforcement. The father sought to vacate the registered order on the grounds that the father had not been served in the Swiss proceedings. The mother sought relief and submitted an affidavit, but the court denied the motion. I assume that if the court had credited the mother’s affidavit, she would have prevailed, but the court excluded the affidavit from evidence because it had not been sworn before a notary. The mother appealed, and the intermediate appellate court affirmed. The mother then sought review in the North Carolina Supreme Court.
Ordinarily an affidavit requires an oath or affirmation. And in our law, a person doesn’t give an oath in a legal sense just by saying “I swear that this is true.” He has to give the oath before a person who by law is authorized to take the oath. Typically that is a notary public, though it can also include justices of the peace, judges, clerks, or other officials. I disclaim any expertise in Swiss law, but I believe that public notaries serve this function with regard to affidavits in Switzerland, too. But under North Carolina’s enactment of the Uniform Interstate Family Support Act, the law provides:
An affidavit … which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this State.
The court construed the statute, apparently correctly, to mean that an unnotarized statement would qualify if given under penalty of perjury. This is consistent with the practice in federal law (28 U.S.C. § 1746) and under the law of other states (e.g., Mass. Super. Ct. R. 15). Therefore, the court reversed the judgment.
While the decision seems correct, I think it would be better for state courts to use more precise terminology. The federal statute takes the best approach. It describes the document not as an “affidavit,” but as an “unsworn declaration.” This approach will avoid the confusion that caused the intermediate court to get the case wrong, because it’s 100% right to say that an affidavit requires an oath. It’s also worthwhile noting that what’s really important and perhaps even radical about the UIFSA’s rule on affidavits is not the relaxed requirement of form and dispensing with the oath, but the abrogation of the ordinary rule against hearsay. In most proceedings, an affidavit, even if sworn, is not admissible in evidence if offered by the person who made the affidavit to prove the substance of what it asserts, because it is hearsay. Our law prefers the testimony of witnesses subject to cross-examination. But the Commissioners on Uniform State Laws concluded that a special rule was required in this context given that in most international child support cases the witnesses cannot always attend court in person.