A Child 's Attorney As Hearsay Conduit in Custody Litigation

Judicial genuflections to the rules of evidence are often encountered in published decisions. The evidentiary rules have been hailed as “the palladium of the judicial process” infringement upon which “destroys the vitality of that judicial process.” (Wagman v. Bradshaw, 292 A.D.2d 84, 91, 739 N.Y.S.2d 421 (2d Dept. 2002).) Such panegyrics to the rules of evidence are quite warranted, given that their overarching purpose is nothing less than to ensure the reliability of the proof put before the trier of fact. Standing at the very core of evidentiary doctrine, of course, is the rightly vaunted rule against hearsay, positioned like a majestic monument to the wisdom of those common law judges who constructed the doctrine to ensure the right of cross-examination so many centuries ago. This prophylactic rule stands as an essential bulwark against the incursion of unreliable information into the fact-finding process.

Yet, sadly, in practice, fidelity to the rules of evidence, and particularly to the rule banning hearsay, is far less than it ought to be. This is especially prevalent in custody proceedings where material of untested validity all too frequently seeps into the record. Ironically, much of the hearsay that subverts the reliability of the proof comes in the form of the child's own out-of-court statements. Even more ironically, the conduit of this evidentiary contamination is often the child's own attorney. This article reviews a number of recent decisions that bear upon these recurrent hearsay issues.

The Basic Rule

The rule against hearsay bans from evidence any out-of-court statement offered for its truth. (People v. Caviness,'38 N.Y.2d 227, 342 N.E.2d 496, 379 N.Y.S.2d 695 (1975); FRE 801.) While this seems simple enough, application of the rule in practice can be complex and difficult. An out-of-court statement may be offered for some purpose other than its truth and, accordingly, is not hearsay at all. Add to that distinction the substantial number of recognized exceptions to the hearsay rule that allow a statement to come in for its truth and, of course, complexity proliferates. Indeed, no less a personage than the late ' and most assuredly great ' Irving Younger compared the rule against hearsay to the infamous and labyrinthine rule against perpetuities. He concluded that the challenge facing the trial lawyer is even more daunting than that confronting the estate practitioner, because, unlike the latter who enjoys the luxury of time and research when drafting documents, the trial lawyer must apply the hearsay rule under the rapid-fire conditions of the courtroom.

Out of the Mouths of Babes

One source of hearsay that looms large in the custody courtroom is the child who is the subject of the litigation. It is not uncommon for one or the other of the parents to attempt to testify to some out-of-court statement allegedly made by the child. That such statements will be kept out of evidence by the hearsay rule is hardly a foregone conclusion.

At times such testimony seeps in without a hearsay objection being voiced. Other times the objection is made, but the court just gets it wrong. This writer has actually heard more than one judge make the categorical ' and profoundly incorrect ' statement that “anything the child said can come in.” This is pure folly. There is no categorical hearsay exception for statements made by children, either generally or in custody litigation specifically.

The recent decision in Gonnard v. Guido, 108 A.D.3d 709, 970 N.Y.S.2d 55 (2d Dept. 2013), presents a classic example of proper application of the rule. At trial, the father attempted to testify to various statements that he claimed were made by the child. The mother's hearsay objection was sustained, and the ruling was affirmed on appeal. This seems straightforward enough. So why, then, do attorneys sometimes miss the objection? Why do courts sometimes get it wrong and receive the inadmissible hearsay? There are a couple of sources of confusion that contribute to the misunderstanding.

First, there are times when a witness (usually but not necessarily a parent) will properly be allowed to testify that the child said this or that because the mere fact that the statement was uttered ' as opposed to its content ' provides circumstantial evidence of state of mind, either of the child who made the statement or the parent who heard it, with respect to a material issue. The Appellate Division, Second Department, in People v. Borukhova, 89 A.D.3d 194, 931 N.Y.S.2d 349 (2d Dept. 2011), articulates the rule succinctly:

In some instances, 't]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant.'

When the state of mind pathway to admission is used, the out-of-court statement is not received for its truth and, thus, is not hearsay at all. It is received only as circumstantial evidence of “the state of mind of the hearer or of the declarant” with respect to some issue in the case. A word of caution here is warranted. This corridor to admission of the child's extrajudicial statement is a narrow one. It is available only if the state of mind that the statement purportedly reflects is itself material, i.e., it relates to an issue in the case. (Khan v. Khan, 51 A.D.2d 871, 380 N.Y.S.2d 148 (4th Dept. 1976)). This requirement that the state of mind itself must be material should be underscored. “State of mind, your Honor,” in answer to a hearsay objection, should not be voiced as a mindless mantra that enables counsel to turn the courtroom into a toxic waste dump for hearsay.

Additional confusion emanates from Family Court Act Article 10. Section 1046(a)(vi) establishes a statutory exception for “statements made by the child relating to any allegations of abuse or neglect.” This provision has been held applicable to custody proceedings as well as Article 10 proceedings, but it must be emphasized that the provision applies by its terms only to statements related to “allegations of abuse or neglect.” Zukowski v. Zukowski, 106 A.D.3d 1293, 965 N.Y.S.2d 231 (3d Dept. 2013). Clearly, this specific and narrow statutory exception is a far cry from the too often heard refrain that “anything the child says can come in.”

Appellate Courts Not Immune

As the above discussion indicates, appellate panels frequently condemn the practice of trial courts allowing the child's attorney to become, in effect, an unsworn witness in the case. Yet on occasion, this misbehavior by the attorney for the child attempts to sneak into the appellate process itself. The notion that it is somehow permissible for the attorney for the child to “update” an appellate court by telling the court in the guise of oral argument or otherwise of purported “facts” that are outside the record is profoundly misguided.

To allow such statements to be made before the appellate tribunal would make a mockery of judicial process. It not only would make the child's attorney a witness in the case, in violation of Rule 7.2, but even worse, he or she would be a witness immune from cross-examination so that the reliability of the “update” could never be tested. Thus, the constraints of Rule 7.2, the ethical prohibition of an advocate acting as a witness, and the safeguard of due process of law would be cast to the ethers in one fell swoop.

Typically when one side attempts to put such extrajudicial ' and of course prejudicial ' material before the appellate court, reliance is placed on the Court of Appeals decision in Mtr. of Michael B., 80 N.Y.2d 299, 604 N.E.2d 122, 590 N.Y.S.2d 60 (1992). Such reliance is misplaced. Michael B. was a combined termination of parental rights and custody proceeding “pitting a child's foster parents against his biological father.” 80 N.Y.2d 299, 303, 604 N.E.2d 122, 590 N.Y.S.2d 60 (1992). After engaging in nuanced statutory analysis of the relevant definitions in the Social Services Law, New York's highest court, the Court of Appeals, stated that immediate remittal was required without deciding the appeal before it. This was because dramatic and objectively determinable new information was received that would have rendered any decision on the merits effectively moot at its inception.

The court was informed that during the pendency of the appeal the appellant-father was charged with ' and admitted to 'neglect of the children who were in his custody. Appellant had admitted the misconduct in open court, and formal findings of fact and consequent orders had been entered by the family court.

The court of appeals did not incorporate this information into the record on appeal or use it in any way as a basis for determining the appeal on the merits. Rather, it considered these new officially ensconced facts only to the extent that they indicated that the record before the court was no longer sufficient for determining the appeal at all. The narrow focus of Michael B ., therefore, hardly justifies the attorney for the child ' or for that matter any attorney in the case ' attempting to apprise the appellate tribunal of any purported “updated” information not found within the four corners of the record on appeal.

Conclusion

Custody cases are real cases deserving real due process. This necessarily requires vigilant observance of the rules of evidence that ensure the reliability of the proof put before the court. Evidentiary laxity sabotages the reliability of the information upon which the court bases its decision. Therefore, by definition, such evidentiary licentiousness subverts the best interests of the child. Those interests are best promoted when all procedural and evidentiary safeguards are strictly enforced.

Timothy M. Tippins a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.

Judicial genuflections to the rules of evidence are often encountered in published decisions. The evidentiary rules have been hailed as “the palladium of the judicial process” infringement upon which “destroys the vitality of that judicial process.” ( Wagman v. Bradshaw , 292 A.D.2d 84, 91, 739 N.Y.S.2d 421 (2d Dept. 2002).) Such panegyrics to the rules of evidence are quite warranted, given that their overarching purpose is nothing less than to ensure the reliability of the proof put before the trier of fact. Standing at the very core of evidentiary doctrine, of course, is the rightly vaunted rule against hearsay, positioned like a majestic monument to the wisdom of those common law judges who constructed the doctrine to ensure the right of cross-examination so many centuries ago. This prophylactic rule stands as an essential bulwark against the incursion of unreliable information into the fact-finding process.

Yet, sadly, in practice, fidelity to the rules of evidence, and particularly to the rule banning hearsay, is far less than it ought to be. This is especially prevalent in custody proceedings where material of untested validity all too frequently seeps into the record. Ironically, much of the hearsay that subverts the reliability of the proof comes in the form of the child's own out-of-court statements. Even more ironically, the conduit of this evidentiary contamination is often the child's own attorney. This article reviews a number of recent decisions that bear upon these recurrent hearsay issues.

The Basic Rule

The rule against hearsay bans from evidence any out-of-court statement offered for its truth. ( People v. Caviness, '38 N.Y.2d 227, 342 N.E.2d 496, 379 N.Y.S.2d 695 (1975); FRE 801.) While this seems simple enough, application of the rule in practice can be complex and difficult. An out-of-court statement may be offered for some purpose other than its truth and, accordingly, is not hearsay at all. Add to that distinction the substantial number of recognized exceptions to the hearsay rule that allow a statement to come in for its truth and, of course, complexity proliferates. Indeed, no less a personage than the late ' and most assuredly great ' Irving Younger compared the rule against hearsay to the infamous and labyrinthine rule against perpetuities. He concluded that the challenge facing the trial lawyer is even more daunting than that confronting the estate practitioner, because, unlike the latter who enjoys the luxury of time and research when drafting documents, the trial lawyer must apply the hearsay rule under the rapid-fire conditions of the courtroom.

Out of the Mouths of Babes

One source of hearsay that looms large in the custody courtroom is the child who is the subject of the litigation. It is not uncommon for one or the other of the parents to attempt to testify to some out-of-court statement allegedly made by the child. That such statements will be kept out of evidence by the hearsay rule is hardly a foregone conclusion.

At times such testimony seeps in without a hearsay objection being voiced. Other times the objection is made, but the court just gets it wrong. This writer has actually heard more than one judge make the categorical ' and profoundly incorrect ' statement that “anything the child said can come in.” This is pure folly. There is no categorical hearsay exception for statements made by children, either generally or in custody litigation specifically.

The recent decision in Gonnard v. Guido , 108 A.D.3d 709, 970 N.Y.S.2d 55 (2d Dept. 2013), presents a classic example of proper application of the rule. At trial, the father attempted to testify to various statements that he claimed were made by the child. The mother's hearsay objection was sustained, and the ruling was affirmed on appeal. This seems straightforward enough. So why, then, do attorneys sometimes miss the objection? Why do courts sometimes get it wrong and receive the inadmissible hearsay? There are a couple of sources of confusion that contribute to the misunderstanding.

First, there are times when a witness (usually but not necessarily a parent) will properly be allowed to testify that the child said this or that because the mere fact that the statement was uttered ' as opposed to its content ' provides circumstantial evidence of state of mind, either of the child who made the statement or the parent who heard it, with respect to a material issue. The Appellate Division, Second Department, in People v. Borukhova , 89 A.D.3d 194, 931 N.Y.S.2d 349 (2d Dept. 2011), articulates the rule succinctly:

In some instances, 't]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant.'

When the state of mind pathway to admission is used, the out-of-court statement is not received for its truth and, thus, is not hearsay at all. It is received only as circumstantial evidence of “the state of mind of the hearer or of the declarant” with respect to some issue in the case. A word of caution here is warranted. This corridor to admission of the child's extrajudicial statement is a narrow one. It is available only if the state of mind that the statement purportedly reflects is itself material, i.e. , it relates to an issue in the case. ( Khan v. Khan , 51 A.D.2d 871, 380 N.Y.S.2d 148 (4th Dept. 1976)). This requirement that the state of mind itself must be material should be underscored. “State of mind, your Honor,” in answer to a hearsay objection, should not be voiced as a mindless mantra that enables counsel to turn the courtroom into a toxic waste dump for hearsay.

Additional confusion emanates from Family Court Act Article 10. Section 1046(a)(vi) establishes a statutory exception for “statements made by the child relating to any allegations of abuse or neglect.” This provision has been held applicable to custody proceedings as well as Article 10 proceedings, but it must be emphasized that the provision applies by its terms only to statements related to “allegations of abuse or neglect.” Zukowski v. Zukowski , 106 A.D.3d 1293, 965 N.Y.S.2d 231 (3d Dept. 2013). Clearly, this specific and narrow statutory exception is a far cry from the too often heard refrain that “anything the child says can come in.”

Appellate Courts Not Immune

As the above discussion indicates, appellate panels frequently condemn the practice of trial courts allowing the child's attorney to become, in effect, an unsworn witness in the case. Yet on occasion, this misbehavior by the attorney for the child attempts to sneak into the appellate process itself. The notion that it is somehow permissible for the attorney for the child to “update” an appellate court by telling the court in the guise of oral argument or otherwise of purported “facts” that are outside the record is profoundly misguided.

To allow such statements to be made before the appellate tribunal would make a mockery of judicial process. It not only would make the child's attorney a witness in the case, in violation of Rule 7.2, but even worse, he or she would be a witness immune from cross-examination so that the reliability of the “update” could never be tested. Thus, the constraints of Rule 7.2, the ethical prohibition of an advocate acting as a witness, and the safeguard of due process of law would be cast to the ethers in one fell swoop.

Typically when one side attempts to put such extrajudicial ' and of course prejudicial ' material before the appellate court, reliance is placed on the Court of Appeals decision in Mtr. of Michael B., 80 N.Y.2d 299, 604 N.E.2d 122, 590 N.Y.S.2d 60 (1992). Such reliance is misplaced. Michael B. was a combined termination of parental rights and custody proceeding “pitting a child's foster parents against his biological father.” 80 N.Y.2d 299, 303, 604 N.E.2d 122, 590 N.Y.S.2d 60 (1992). After engaging in nuanced statutory analysis of the relevant definitions in the Social Services Law, New York's highest court, the Court of Appeals, stated that immediate remittal was required without deciding the appeal before it. This was because dramatic and objectively determinable new information was received that would have rendered any decision on the merits effectively moot at its inception.

The court was informed that during the pendency of the appeal the appellant-father was charged with ' and admitted to 'neglect of the children who were in his custody. Appellant had admitted the misconduct in open court, and formal findings of fact and consequent orders had been entered by the family court.

The court of appeals did not incorporate this information into the record on appeal or use it in any way as a basis for determining the appeal on the merits. Rather, it considered these new officially ensconced facts only to the extent that they indicated that the record before the court was no longer sufficient for determining the appeal at all. The narrow focus of Michael B ., therefore, hardly justifies the attorney for the child ' or for that matter any attorney in the case ' attempting to apprise the appellate tribunal of any purported “updated” information not found within the four corners of the record on appeal.

Conclusion

Custody cases are real cases deserving real due process. This necessarily requires vigilant observance of the rules of evidence that ensure the reliability of the proof put before the court. Evidentiary laxity sabotages the reliability of the information upon which the court bases its decision. Therefore, by definition, such evidentiary licentiousness subverts the best interests of the child. Those interests are best promoted when all procedural and evidentiary safeguards are strictly enforced.

Timothy M. Tippins a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.