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New York Custody Hearings:Corroboration of a Child's Out-of-Court Statement

Posted by attorney Anthony Buono

In neglect and custody proceedings a child's out-of-court statement claiming abuse or neglect may be admissible if it is corroborated sufficiently. As with the types of circumstances that give rise to this exception to the hearsay rule, the definition of corroboration is very broad.

The Family Court Act defines corroboration as any other evidence tending to support the reliability a statement. Hence, corroboration of a child's out-of-court statement regarding incidents of abuse or neglect can be gleaned from any evidence tending to support the reliability of the child's statement.

Because of this broad definition, the Family Court has considerable discretion in determining whether a child's out-of-court statement is corroborated sufficiently. Overall, a relatively low degree of corroboration is required.

The witness providing the corroboration need not be the witness who is testifying about the child's statement. So, for example, the child can tell one person what happened and another person can testify to the facts that corroborate the statement.

Corroboration can come from marks on a child. Witnesses can testify about their observations about marks on or injuries to a child. Photos of marks or injuries also can provide corroboration, but are not required.

When there are no visible marks, there still can be corroboration. For example, corroboration can include a parent’s description of changes in the child that he or she observed. In one case a mother described dramatic changes in the child's behavior, such as panic attacks, self destructive behaviors and the inability to sleep. These observations were held to corroborate the child's out-of-court statements of mistreatment.

Observations about the demeanor of children by third-parties also can corroborate the child's out-of-court statements. In one case the court found that testimony that the child appeared to be afraid was sufficient corroboration of the child's out-of-court statements about the parent's misconduct.

Using a child's out-of-court statements in a custody case is a complicated matter. A proper evidential foundation is required and proper corroboration must be presented in order to use this exception to the hearsay rule. This is the type of issue that an experienced domestic relations attorney will be able to handle skillfully for litigants.

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