United States: Appellate Division Addresses Use Of Hearsay Statements In Motions

Last Updated: June 21 2016
Article by Robert A. Epstein

Family law practitioners know that in this area of practice, perhaps more so than in any other practice, hearsay statements are often an important part of motions brought before the trial court for every kind of relief imaginable. A hearsay statement is a statement made outside of the court that is offered for the truth of the matter asserted. Unless one of many exceptions apply, hearsay statements are inadmissible. For example, if mom in her certification filed with a motion asking the court to address parenting time includes statements from the parties' daughter that mom is asking the court to consider as truth, the daughter's statements constitute inadmissible hearsay. In other words, the court should not consider the daughter's statements when rendering its decision.

As we have frequently written, however, oftentimes anything goes in family law. Hearsay statements are commonly no exception. I have heard many times from Family Part trial judges that the rules of evidence will often be relaxed, including the hearsay rule, especially when issues of custody and parenting time are before the court to ensure that the best interests of the child are fulfilled. It is for that reason why practitioners and litigants often put whatever they can before the trial court to convince the judge to rule in his or her favor.

In Arrowood v. DiBenedetto, a recently unpublished (not precedential) Appellate Division decision, the Court addressed the trial court's rejection of various hearsay statements from the subject child provided by mom in denying mom's motion to terminate overnight parenting time with dad because he continued to smoke in the child's presence against doctor's orders. Addressing mom's application, the Court noted:

What we glean from the record provided is defendant's most recent motion relied on her daughter's hearsay statements and a certification from [dad], the content of which is not before us. A trial court generally does not abuse its discretion by not relying on hearsay statements, because there is always a question about the exact content of such statements, especially when they are recounted by a party with an interest of the outcome of a decision. The law controlling the presentation of evidence in our courts excludes hearsay in numerous contexts. We certainly cannot conclude from the scant record before us that the trial court here abused its discretion by not imposing the drastic sanction of terminating parenting time based on hearsay.

Notably, however, the Court suggested that there still may not have been an abuse of discretion had the trial court considered the subject hearsay statements, especially since the matter involved the subject child's health:

That is not to say we are insensitive to either defendant's arguments or her frustration. Although she has not provided us with the transcripts or the statement of reasons for the court's previous orders, at least one order appears to have been based on her firsthand observation. Notions of fairness and confidence in our system of justice often dictate that a court enforce its orders. That would appear to be especially so when a child's health is at issue. But enforcement motions generally present competing versions of events and often require courts to balance profound competing interests. That is particularly so in family matters involving children and parental rights. That is also why Family Part judges are vested with broad discretion, and why we review their discretionary decisions with deference. Here, the record does not establish such an abuse of discretion.

So what is the takeaway here. Sometimes the Rules of Evidence apply and sometimes they do not, although there is no specific rule indicating that the evidence rules should not always apply. In practice, it depends on the factual circumstances, the litigants, the trial judge, and the like. Especially when a child is at the center of the dispute, as opposed to more straightforward financial issues, a court is more likely to stretch its discretionary muscles to protect the child's best interests above all else.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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