Hearsay in Child Custody Cases

Chances are if you have seen any courtroom drama on TV or in a movie, you are aware of the concept of hearsay – generally, statements made outside of court by a third-party that are cannot be offered as evidence in court. The general bar on hearsay evidence can have a huge impact in litigation, particularly in child custody cases where a parent want to testify as to what their child said, which a hearsay statement that should be excluded from evidence.

Rule 801 of the North Carolina Evidence Code defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The North Carolina Evidence Code further defines a “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion,” and “declarant” as “a person who makes a statement.”

Hearsay evidence typically consists of one party testifying as to what another said outside of court. A Mother’s testimony that “my son told me that his Father is always drunk” is oral hearsay. An email Father introduces from the child’s soccer coach which says “Mom is always late picking son up from practice” is written hearsay (so long as the soccer coach is not present in court).

As a general rule, hearsay is prohibited by the North Carolina Evidence Code and must be excluded from evidence, however, as is often the case, there are hearsay exceptions. One example is a record created in the regular course of business, for example, a child’s report card, which can typically be offered without having each and every teacher appear to testify as to the grade given.

In North Carolina child custody cases, statements made by children can often be extremely relevant for the Court to decide the issue of child custody. While the child’s out-of-court statement is typically inadmissible hearsay evidence, there are certain ways tactics under the Rules which can help that evidence be introduced to the Court, such as the many hearsay exceptions. Your attorney can also frame testimony questions to get to the core of what a child said or did without the person testifying offering an answer that is hearsay and could be excluded from evidence.

If you have an ongoing Child Custody Case or any other North Carolina Family Law case, it is extremely important to know the ins and outs of the North Carolina Evidence Code. To speak with someone about your case, please call us at (704) 810-1400 to schedule a confidential consultation.

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