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

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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