How to get children's statements into evidence
REPRESENTATION OF MINOR CHILDREN & HOW TO GET CHILDREN’S STATEMENTS INTO EVIDENCE WITHOUT THE CHILDREN SEEING THE INSIDE OF A COURTROOM
In Camera InterviewsIN CAMERA INTERVIEWS
A. Interviews (a) The court may interview the child in chambers to ascertain the child*s wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.
1. The court is not required to interview the children in every case to determine their preferences as to custody or visitation. IRMO Milovich, 105 Ill.App.3d 596, 434 N.E.2d 811 (1st Dist. 1982).
B. There is no absolute right to present the child(ren)*s testimony during a custody proceeding and, when testimony is presented, it is in the discretion of the court whether to receive it from the witness stand or in camera. IRMO Willis, 234 Ill.App.3d 156, 599 N.E.2d 179 (3rd Dist. 1992).
C. The court may decline to interview the children when it receives evidence of the child(ren)*s preferences though other testimony. IRMO Doty, 255 Ill.App.3d 1087, 629 N.E.2d 679 (5th Dist. 1994).
D. Presence of Counsel
1. Counsel shall be present at the interview unless otherwise agreed between the parties. 750 ILCS 5/604.
2. Counsel for the parties may waive right to be present during in camera interview. IRMO Hindenburg, 227 Ill.App.3d 228, 591 N.E.2d 67 (2nd Dist. 1992).
E. Court Reporter
1. Mandatory and cannot be waived by the court or counsel.
a. However, it was harmless error where court reporter was not present during an in camera interview. IRMO Slavenas, 139 Ill.App.3d 581, 487 N.E.2d 739 (2nd Dist. 1985).
2. The transcript must be made instantaneously. This relates to the making of the record and not the filing of the transcript in the court file. IRMO Hindenburg, 227 Ill.App.3d 228, 591 N.E.2d 67 (2nd Dist. 1992)
a. The transcript must be preserved to allow parties to review for appeal. IRMO Willis, 234 Ill.App.3d 156, 599 N.E.2d 179 (3rd Dist. 1992).
b. The transcript can be impounded to permit the court, free from pressure by the parties, to ascertain the child(ren)*s preferences. IRMO Hindenburg, 227 Ill.App.3d 228, 591 N.E.2d 67 (2nd Dist. 1992); See Also IRMO Slavenas, 139 Ill.App.3d 581, 487 N.E.2d 739 (2nd Dist. 1985).
F. Scope of Inquiry
1. Preferences as to custody and visitation. 750 ILCS 5/604; Regan vs. Regan, 53 Ill.App.3d 50, 368 N.E.2d 552 (1st Dist. 1977); Seniuta vs. Seniuta, 31 Ill.App.3d 408, 334 N.E.2d 261 (1975).
2. The child(ren)*s expression of preference is not binding on the court. For example, a five year old*s preference is not binding when she states a preference to live with mother but is unable to state the reason for her preference except to state that her mother had no one else. IRMO Shoff, 197 Ill.App.3d 178, 534 N.E.2d 462 (5th Dist. 1989); IRMO Milovich, 105 Ill.App.3d 596, 434 N.E.2d 811 (1st Dist. 1982).
a. However, see IRMO Wycoff, where the appellate court held that Section 602(a)(2) of the Illinois Marriage and Dissolution of Marriage Act does not require the child to give a good reason for her preference.
Overcoming Hearsay1) State of Mind Exception - A statement expressing the declarant*s then-existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, is admissible as a hearsay exception. M. Graham, Cleary & Graham Handbook of Illinois Evidence Section 803.4 at 799 (7th Ed. 1999).
2. Made for Purpose of Medical Treatment - Statements made by children to medical providers in order to receive treatment.
3. Business Record.
4. Spontaneous Declaration.