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He Said, She Said: Admission of Hearsay Statements Regarding Child Sexual Abuse in Custody Cases: Part 1 of 12 Parts

JACBy Jennifer A. Crissman, Attorney, Woodruff Family Law Group

When attorneys in Guilford County try custody cases in which there have been allegations of child sexual abuse, it is vital that statements made by the child regarding the abuse be admitted into evidence. These statements regarding abuse can be critical in determining the best interests of the child, as well as the level of supervision and involvement of the parents when the abuse of the child occurred. The primary way the child’s statements are admitted into evidence is through the child’s testimony at the custody hearing. However, a child may not testify for a variety of reasons, such as the Court finding the child incompetent to testify due to age, or the parents not wanting to expose the child to the emotional turmoil of testifying. Whatever the reason, if the child does not testify then the family law attorney will need to get the out of court statements made by the child, called hearsay statements, admitted into evidence.

Hearsay statements are generally not admissible. However, the court will allow certain hearsay statements into evidence if they fall within specific exceptions that are designated by statute. In this twelve part series, we will examine the multiple hearsay exceptions the family law attorney can utilize and the relevant cases that will assist in getting these crucial statements admitted into evidence.

Let us consider the following fact pattern for our twelve-part series. Mother and Father are separated and have two young sons, Aaron who is age 5, and Billy who is age 3. The Parents are in the middle of a fierce custody battle but have a temporary custody agreement in place until permanent custody is heard by the court. During Mother’s custodial time with Aaron and Billy, she will let the boys’ Uncle Chad babysit while she runs errands. After several months of Uncle Chad watching the children alone, Aaron and Billy tell their Mother that they would like their Grandmother to babysit them instead of Uncle Chad. When their Grandmother comes over to babysit, Aaron and Billy tell Grandmother that Uncle Chad has been inappropriately touching them and threatened to hurt Aaron and Billy if they told their mother what was happening. Grandmother immediately tells Mother about the boys’ statements, and Mother takes the boys to a Child Advocacy Center. At the Child Advocacy Center, a social worker and a detective each separately interview Aaron and Billy, and the interviews are recorded on closed circuit television. The children are then given a forensic medical examination by a pediatric nurse and a doctor. Following the forensic medical examination, Aaron and Billy begin therapy with a licensed child therapist. The children have at this point made statements to each of the adults involved. This means there is a multitude of hearsay statements made to various witnesses that could be critical to the custody case.

In our next installment, we will study the statements made to Grandmother and how the attorney can get these statements admitted into evidence, as well as the case of State v. Smith and its applications to our case.