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Can a Child’s Statements Be Used in Court Without the Child Testifying?

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Categorized as Child Custody, Child Custody & Visitation, Divorce Litigation, Family Law, Illinois Family Law

When there are allegations of child abuse, many wonder if it’s possible for a child’s statements to be used in a hearing before a judge without the child having to testify. In other words, can your child’s hearsay statements be used in court? Does your child have to appear in court and repeat what was previously said, or can the child’s words be used in the hearing even though she isn’t there?

Hearsay and Use of a Child’s Statements in Court

In many orders of protection cases, parents try to use their child’s statements against the other parent. So, when is it allowed? There are a couple of statutes that the Illinois Courts look to regarding hearsay statements, and you should be aware of each and how they are used.

Section 606.5 of the Dissolution Act (750 ILCS 5/606.5 (West 2018)) specifically pertains to hearings and addresses hearsay statements made by a child in subsection (c).

“Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act [(325 ILCS 5/1 et seq. (West 2018))], or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987 [(705 ILCS 405/1-1 et seq. (West 2018))], shall be admissible in evidence in a hearing concerning allocation of parental responsibilities in accordance with Section 11.1 of the Abused and Neglected Child Reporting Act [(325 ILCS 5/11.1 (West 2018))]. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient to support a finding of abuse or neglect.” 750 ILCS 5/606.5(c) (West 2018).

Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019).

Section 8-2601 (735 ILCS 5/8-2601 (West 2018)) is located in article VIII of the Procedure Code (735 ILCS 5/art. VIII (West 2018)), which addresses evidence. That section states the following:

“(a) An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

(b) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given to the statement and that, in making its determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.

(c) The proponent of the statement shall give the adverse party reasonable notice of an intention to offer the statement and the particulars of the statement.” 735 ILCS 5/8-2601 (West 2018).

Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019)

Illinois Orders of Protection Laws and Admissibility of Hearsay

The statutory provisions providing for orders of protection are contained in Article II of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/art. II (West 2018)). Under that article, section 205(a) (750 ILCS 60/205(a) (West 2018)) provides the following:

“Any proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence, whether the proceeding is heard in criminal or civil court. The Code of Civil Procedure [(735 ILCS 5/1-101 et seq. (West 2018))] and Supreme Court and local court rules applicable to civil proceedings, as now or hereafter amended, shall apply, except as otherwise provided by this law.”

Article II also contains a hearsay exception, which applies to “an action for an order of protection on behalf of a high-risk adult with disabilities.” 750 ILCS 60/213.1 (West 2018). The procedure code only addresses the admissibility of out-of-court statements related to child and elder abuse. See 735 ILCS 5/8-2601, 8-2701 (West 2018). Arika M. v. Christopher M., 2019 IL App (4th) 190125 (Ill. App. 2019).

Cases Where Child’s Hearsay Statements Admissible in Court

In Flannery, the circuit court admitted statements made by a child, who was around three years old at the time of the hearing. See Flannery, 328 Ill. App. 3d at 604, 611 (noting the child’s three-year doctor’s appointment was in December 2000 and the hearing began on April 3, 2001). Because the child was so young, it was determined that the child was “unavailable.”

The case of Arika M. v. Christopher M. addresses the problems with child hearsay in an order of protection case. 2019 IL App (4th) 190125 (Ill. App. 2019). In this case, the court allowed the children’s hearsay statements into evidence, but there was no corroboration. The Appellate court, in this case, overturned the judge’s ruling allowing an order of protection against the father.

The Arika M. v. Christopher M. Case

In that case, the mother filed for an order of protection on behalf of herself and her three daughters, and against her husband. The trial court granted the mother’s petition, even though the children were not there to testify. The father was allowed parenting time, but it had to occur within the grandparent’s supervision.

In the mother’s petition, she argued that her daughter did not want to be around their father. The mother stated in her petition that her daughter had been at a band concert and was not acting normally when she returned home. After the concert, the mother asked her daughter what was going on, and her daughter started crying and refused to say anything. Later that night, the mother read her daughter’s diary and the next day, she took the diary to the Illinois State Police.

Children Interviewed by Children’s Advocacy Center and DCFS Case Opened

All three daughters were interviewed at the Children’s Advocacy Center. In the mother’s petition seeking an order of protection, she attached a letter from Illinois State Trooper, detailing what the girls disclosed during the interviews. The letter stated that the girls were being touched by their father in “their private areas and took baths with them.” They also stated that their father walked in the bathroom and opened the curtain while they showered, even after they had requested him to leave. The girls reported feeling uncomfortable and unsafe while in his custody.
Thereafter, the Department of Children and Family Services (DCFS) opened a case. Again, the letter was produced to a DCFS child protection investigator and also to the children’s school so that the father would not take the children.

Emergency Order of Protection Against Father Issued

On December 19, 2018, the circuit court issued an emergency order of protection against the father and reserved visitation and prohibited him from having any contact with the girls. The emergency order of protection remained in effect until the completion of the hearing on the plenary order of protection.

Mother’s Request for a Plenary Order of Protection

On January 28, 2019, the circuit court commenced the hearing on the mother’s request for a plenary order of protection (2 years). The mother testified on her own behalf, and also presented the testimony of Kate Wheeler, the girls’ counselor.

During the direct examination of Wheeler, the father’s attorney raised a hearsay objection to a question asking Wheeler to disclose what the daughter had told her regarding abuse during a counseling session. The father’s attorney said that the admissibility of the minor’s out-of-court statements was governed by section 8-2601 of the Code of Civil Procedure (735 ILCS 5/8-2601 (West 2018)) and the mother had not established the requirements for admissibility. Specifically, the child was not present to testify, and the mother had not made a showing of the child’s unavailability.

The mother’s attorney argued that section 606.5(c) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/606.5(c) (West 2018) (formerly section 606(e) of the Dissolution Act)) applied. Further argument stated that even if section 606.5(c) applied, the statements were not admissible unless corroborated. In response, the petitioner’s counsel suggested the circuit court should reserve ruling until additional evidence corroborating the out-of-court statements could be presented. The court reserved ruling on the objection to “wait and see what corroboration there is and what indicia of reliability there is.” Both Wheeler and petitioner then gave testimony that included out-of-court statements made by the three girls.

Circuit Court Admitted Girls’ Out-of-Court Statements

After the close of the mother’s case, the court ruled on the issue of the admissibility of the girls’ out-of-court statements. The father’s attorney argued that the mother did not present any corroborating evidence and noted that she failed to present any medical evidence of abuse.
The mother argued that the girls’ demeanors and actions were corroborative evidence. The court admitted the statements, agreeing with the petitioner’s counsel that the girls’ actions and demeanors corroborated their out-of-court statements. In admitting the statements, the court never specified the statute it relied upon.

Circuit Court Issued Plenary Order of Protection

The circuit court found “it’s not clear at all when the incidents that have been described occurred; however, the court is satisfied that the incidents did occur.” The court also noted it rejected the suggestion the petitioner made up the allegations and stated a plenary order of protection would issue.

Corroboration or Availability to Cross-Exam the Child

In this case, the out-of-court statements admitted were made by minor children, who were old enough to testify in court. The children were able to testify, but the mother didn’t call them in her case. Which is understandable, since she likely didn’t want to expose her children to the proceeding. But to take action against the father and not allow him parenting time (unless supervised) is not fair to the father either. In domestic relations cases, it is not uncommon for one side to plead for an order of protection to seek an upper hand in the custody litigation. It clearly would be hurtful for the girls to take the stand and testify as to what occurred, but without that ability to cross-exam, the hearing is not fair.
After considering the statutory scheme for both hearsay provisions as well as the Domestic Violence Act, it was found that section 8-2601 of the Procedure Code was the applicable statute the court should have used. Section 205(a) of the Domestic Violence Act (750 ILCS 60/205(a) (West 2018)) requires the application of the Procedure Code. At issue in an order of protection proceeding is whether the “petitioner has been abused by respondent, who is a family or household member.” 750 ILCS 60/203(a) (West 2018).

The trial court should have said which statute it was relying upon in allowing the hearsay. It was clear that the court did not follow the provisions of section 8-2601 because it did not make a finding of reliability or a finding the minor children were unavailable as witnesses.

Corroboration of a Child’s Hearsay Statement

Both section 606(e) of the [Dissolution] Act and section 8-2601 of the [Procedure] Code require corroboration of the child’s hearsay statements where the minor is unavailable to testify. What exactly would be corroboration? And when is a child unavailable to testify?

Corroboration of a child’s statement could be cuts and bruises or hospital records showing an injury to the child. In other words, if a child told you that her mother hit her in the mouth and the child has a swollen mouth, the statement has corroboration. The hearsay statement could come into evidence.

Consult a Chicago Family Law Attorney About Admissibility of Your Child’s Statements in a Court Proceeding

Whether your child’s statement can come into evidence in court requires an examination of what type of case you have and how the statement was made. You will need the expertise of a professional to determine if your child will be allowed to testify, or if you can get in the child’s statements without the child being present in court.

A child’s statements regarding any harm or abuse at the hands of a parent are very serious and are important in any family law case. Contact Anderson & Boback to speak with our experienced family law attorneys to determine how your child’s statements and testimony will be received by the court.

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For years, I have been bombarded with bad-faith petitions by my daughter's biological father; Though we've lived in Florida since my daughter was 17 months old (she'll be 12 in a week), the jurisdiction has remained, sadly, in Illinois. Her father has an unlimited... amount of money to waste, and as a single mother of two, and a Florida educator, I do not; I have struggled to fly back and forth to Chicago from Florida, fighting Pro-Se because I've not been able to afford an attorney. I've had to incur costs to fly to Chicago, lose work time, lose time with my family, and simply continue to be harassed with no end in sight. Recently, after being bombarded again- now with 'emergency petitions' with no merit to them, but simply designed to ensure I am not able to fly within 24 hours from Florida to Chicago to defend myself, my family members said, "ENOUGH!". I was referred to Janice Boback from a dear family friend, and another family member loaned me the retainer fee, which is very reasonable. Janice, with only 36 hours to prepare for a hearing, was a ROCK STAR! It was the first time I felt that the 'little guy' won a victory! She was laser sharp, calm, and unrelenting - Everything was dismissed against me! My daughter's best interest was supported, and the Judge, because it was a hearing, was finally made aware of the facts. After almost two hours, the judge stated he finds me, "Completely credible, honest, and in no way attempting to interfere with [my] daughter's relationship with her biological father"... He went on to tell her father, "She is not responsible for 'spoon-feeding' you information about your daughter."... POETIC JUSTICE! Janice is my HERO - A Peaceful Warrior who is steady in a sea of chaos, ready to lift onto her shoulders those whose voice has been drowned out! Thank you!read more
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Ms. Boback is an excellent legal resource. She collaborated with me on possible solutions for a mutual client concerning a complicated matter that implicated the laws of multiple states. She was knowledgeable, helpful, and practical. She certainly earned my highest... endorsement.read more
James L.
While looking to switch to a female attorney for a very contentious separation involving a child with an exe, I came across the law firm of Anderson & Boback. They were very prompt with the call-back response to my inquiry and connected me with Janice right away.... Janice took a substantial amount of time to speak with me, to better understand the complexities in my case, and she offered great insight.I found this firm to very compassionate and understanding in how to navigate the legal system in this matter and also in their understanding of the sort of individual I unfortunately have to deal with and the associated legal games separating parents may face.I would have absolutely sought Anderson & Boback’s council but there was a conflict and with my case already advanced, I chose another female attorney. Based on my initial experience, I would definitely recommend this firm!read more
Lucy M.
You get what you pay for... !After firing our first attorney because quite frankly he was in over his head with our case we hired Jessica Marshall from Anderson and Boback.Jessica was responsive, attentive, has a hyper attention to detail and of course, knows the... laws relating to the litigation of custody, child support, and parenting time inside and out. At no point did we feel Jessica was not ontop of our case and ready to see our case all the way through to a trial. She managed expectations. Under promised, over delivered!No trail, an agreement in place with the parenting time we wanted and a manageable child support order was the end result of a bitter child support and parenting time case.Hopefully we will not have to utilize Jessica’s services again but in the event that we need to, we have full confidence in her abilities. She did an outstanding job for us. Cannot say enough about how pleased we are as a result of Jessica’s services. Highly recommend!read more
Devere J.
I could not be more impressed or appreciative for this firm's work. Kimberly Anderson is professional, benefits from an exceptional reputation in the legal community, and understands how to make a difficult process easier. Her availability to answer questions and... strategize goes far beyond what I've experienced with other lawyers. I highly recommend her firm.read more
John D.
Kim Anderson is a fantastic attorney. I was very stressed and scared over possible outcome of my case. Kim successfully defended me and helped me move forward with my life. I can't honestly thank her enough.
Jason G.
I was in an existing parentage case that had been drawn out for about a year and a half with little being done, before I decided to switch firms to Anderson & Boback. Kim Anderson reached out to me immediately upon my inquiry and it was very clear to me that she was... interested in what I had to say, and genuine in her responses to my questions. In taking on my case, she showed strong support for the outcome I wanted, gave very reasonable advice to help me get there, and brought experience to the table to guide me in my own decision making. She kept things moving, and so within only a few months of bringing her on, we were able to wrap up the case with a great outcome. Couldn't be more pleased. Thank you so much Kim!read more
Suzanne P.
Absolutely wonderful, are just some of the adjectives I can use to describe the wonderful women at Anderson and Boback. Kimberly Anderson is a tough hard-nosed lawyer who knows what she's doing and the direction she wants to go when it comes to fighting for her client.... Since the day I contacted this firm because of the deteriorating circumstances involving my ex-wife, she listened to me and gave sound advice. When it came time to fight in the courtroom, she was more than ready and communicative throughout the entire process with the first emergency order, which we won. This happened on two more occasions before our day in court and she still fought hard winning each time. The communication was excellent as she explained the possible outcomes and worst case scenarios before each case. I couldn't have come into contact with a better lawyer. Kim is outstanding and she stays abreast of current changes occurring within our legal system. In instances when Kim personally couldn't be there, Jessica Marshall stepped in her place and did a wonderful job. Our last victory was culminated with Kim still giving her all to fight for me, when she was dealing with her own health issue; that honestly meant a lot to me because she was not only displaying her passion to fight for her client but her dedication to obtaining best possible solution for a father who was being denied his parental rights. All I can say is, if you're contemplating on hiring these wonderful women at Anderson and Boback, DO IT! You will not regret your decision because they will fight for you and they are just wonderful from the paralegals, to the lawyers, and partners they're TOP NOTCH! Not only in the state of Illinois but I'd put them against any lawyer nationally.read more
Bruce J.
I just want to say that Kimberly Anderson is an amazing lawyer!! She is smart and easy to talk too. She is willing to listen to you and what you want. She helped me in more ways than she knows. She always answers your calls or emails and if you don’t understand... something she is more than willing to explain it . She also won’t sugar coat things and has your best interest in mind. I will recommend her to anyone that needs a divorce lawyer. Also the people who work with her are friendly and always willing to help in any way they can.read more
Kate G.
My sister had used thier services and I can actually say THEY ARE F***KING GOOD .. I seen them in action they WON. I can actually say I want them on my side..
Maria H.
Jan Boback represented me in a domestic order of protection case. Her expertise and performance in court was nothing but stellar! She knew every aspect of the law related to this issue and very clearly communicated the conforming facts of the case to the judge. The... judge, even though they have full discretion, could not argue with Jan's facts, how they conformed and her very calm presentation. She read the judge's body language which has a big factor in court when you are dealing with a judge you've never been before in the past.Jan is nothing but outstanding at her job.I've referred her to others and will continue to do so.Deanread more
Dean K.
I have worked in law enforcement for over 30 years of service in Illinois as a Chief of Police and now serving as a chief in another police department. I have worked within the legal system at the Federal, State, and County levels. Nobody ever goes into a marriage... wanting it to fail, but sometimes things happen that are beyond our control and we are left with no other choices. I hired Attorney Kim Anderson from the Law Firm of Anderson & Boback as my divorce attorney to handle my case because I was advised by other top lawyers that I knew she was a honest hardworking fighting attorney in her field, who truly cares about you as an individual, a client, and the overall final outcome of your case. Well, I am honored to say that Ms. Anderson truly lived up to her reputation with her true professionalism, a genuine caring of you as a person going through a rough time and a personality that shows nothing but compassion. Ms. Anderson takes the time to explain the legal system step by step as she prepares your case for pretrial and always responds to your phone calls, or emails within minutes. I may not always agree with the divorce laws in Illinois but Ms. Anderson is not afraid to fight when needed and always keeps focus on the main objectives which is your best interest long after the case is resolved and signed off by the judge. I would highly recommend Ms. Anderson and her firm to represent you so that you have peace of mind throughout the entire process. A divorce is the worst thing any person could experience besides a death. When going through this you need the best to protect you and all your assets.The ChiefDaniel Babichread more
Daniel B.
I was very grateful to do business with Janice Boback.I am a strong believer in God, Justice, and “Janice”.She expressed extreme knowledge in the law pertaining to my case. Her winner attitude and great communication skills always kept my mind at peace.The trust... connection and bond between Janice and I was priceless.I always felt protected under her guidance with complete awareness of the status and all possible outcomes to my case.She was always available to answer or explain any questions or concerns I had.She is truly the attorney to have if the situation arises.read more
Larisa H.
Kim Anderson has a knack for staying 1-step ahead of me and my thought process. This is extremely helpful in those moments when I am stressed on legalities and not quite thinking straight. Kim also capably breaks the legal speak into everyday terms that I can... understand. Kim is an excellent attorney who is prompt, diligent and professional. The team at Anderson & Boback was invaluable in guiding me through my divorce as well as resettlement issues that I initiated after the divorce. Thanks for all your help Kim!read more
Michael C.
Jessica Marshall was amazing! My divorce should have been an easy process, since we didn't have any children or assets; however the opposing party was adamant on making it complicated. Jessica not only kept me informed of everything that was happening but advised me on... the best course of action to get divorced within a reasonable time-frame and without it costing me everything I owned. I couldn't thank her enough once it was all over. I can now move on with my life and it's because of her.read more
Jenny R.
Jessica is Amazing! She is kind, thoughtful, detailed oriented. She is quick in responding. She is knowledgeable. She fought for me in court and not afraid to speak up for her client. She has this confidence in return I feel confidence. She gives me good advices and... helping me to make right decisions. I am so very grateful she is my attorney.read more
Daranee A.
Jessica Marshall sat with me and supported me from the moment of our first consult to the final court appearance. No question went unanswered, no call/email left unreturned, and no doubt that she was on my side and ready to work. Jessica handled my case with confidence... and empathy, which I greatly appreciate given court can, often times, feel overwhelming. Cost was worth every penny and I know that every dollar was earned. I am grateful that the outcome was in my daughter’s favor and that she is now safe. My daughter will be forever thankful for finally having her voice heard in court, as Jessica suggested, through a child rep. I also want to acknowledge Gianna Carabez, Jessica’s paralegal, for always being kind and available to take my calls.read more
Sara G.
I have worked with lawyers in the past, Jan I feel really took care of me! She always had time for me, was very good at getting back to me when she was busy. In court I could see she handled her self confidently and was respected by other lawyers and also the judge. I... have recommended her to friends and family and will continue to do so!read more
Jim B.
This practice will go above and beyond! During a difficult time they were understanding and helpful.Very responsive! I received a fair and favorable outcome. I recommend contacting them immediately to get the ball rolling.
Antiwon S.
After visiting with two other law firms, I selected Anderson & Boback. They are professional! The former office was bright and pleasant. The receptionists are professional. The attorney I was assigned listened to my story and then prepared a course of action. I am... glad I chose Anderson & Boback to handle my divorce case. I highly recommend them!read more
Richard P.
Kim came as a referral from a great friend of mine. This wasn't an easy process to go through, but Kim gave me great guidance and help along the way. Wouldn't have gotten the outcome I wanted without her and her team.
Meghan M.
In April of 2016, I had an urgent need for a family attorney to help me litigate some critical issues unresolved from my divorce decree ordered by the cook county family court in 2011. I interviewed 3 attorneys and ended up picking the last one I felt was the best out... of the three. What a mistake I made after two months of litigation and more than $10,000 legal fees. In July, I interviewed two more attorneys and I selected attorney Anderson to replace the previous attorney. What a switch I made! All the critical issues were litigated and resolved to my complete satisfaction. Attorney Andersen has a very simple way of serving her client: she will listen to my story and ask what legal outcome I am expecting to get, and she will recommend a course of action and get me the result in the most cost effective manner. In short, when you give your problems to attorney Anderson for solutions, you can go home and sleep well.read more
Dean C
Kim handled both of our adoptions for us and made the process so easy. When you’re overwhelmed with all of the legal details it’s so nice knowing you’ve got someone who will attend to them so you can focus on other things. Very professional and highly recommended!
Cd J.
In 2015 Ms. Anderson handled my divorce. She was professional and completely transparent with the process and what to expect. I would recommend her to anyone seeking a good family law attorney.
John A.
Kim is very professional and cared about your case. Always there when you need her. Thanks for all your hard work.
Kim S.
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    Firm Overview
    ANDERSON & BOBACK

    Anderson & Boback is a highly-respected, experienced Chicago family law firm, skilled in negotiation and litigation. When divorce and other family law issues make your life chaotic and uncertain, you want your case resolved as quickly and fairly as possible. Call Now 312-715-0870