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New York Custody Hearings: Using A Child's Out-of-Court Statements

Posted by attorney Anthony Buono

Proving in court child abuse or mistreatment can be difficult. Often we only have a child's out-of-court statements to a parent or a third party and very little other proof. An evidentiary problem arises in this situation since out-of-court statements are hearsay. Hearsay statements generally are not admissible in court. That means that they cannot be offered as proof in court.

In light of these difficulties with proof, there is a section of the Family Court Act that specifically allows a child’s out-of-court statements to be used as evidence in abuse and neglect cases. Through a long line of court decisions, this hearsay exception has been applied in certain circumstances in custody cases.

What amounts to neglect of a child is defined broadly according to the Family Court Act. It includes any act or acts that impair or create an imminent danger of impairing the physical, mental or emotional condition of a child by a caregiver failing to exercise a minimum degree of care. It includes unreasonably inflicting harm or allowing harm to be inflicted upon a child. It also includes any act or acts that create a substantial risk of harm to a child.

Based upon this broad definition of neglect, courts have applied this hearsay exception liberally in neglect and custody cases to a litany of sins against children by their adult caregivers.

Many examples of cases where courts have allowed the admission of a child’s out-of-court statements include those with allegations of sexual abuse. Other cases include matters of verbal abuse and excessive corporal punishment. Some more colorful cases have included a case where the parent used the child as a decoy while shoplifting and another case where the child was exposed to sexually inappropriate material consisting of a video of the mother performing oral sex on the father.

Establishing a sufficient allegation of neglect is just the first step in using child’s out-of-court statement as proof in a hearing. The next step is that the statement must be corroborated by some other proof. The Family Court Act broadly defines corroboration as any other evidence tending to support the reliability of the previous statements. Corroboration is the subject of another article on this Blog.

In any event, using a child's out-of-court statements in a custody case is a complicated matter. But often it is necessary. This is the type of issue that an experienced domestic relations attorney will be able to handle skillfully for litigants.

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