As a general rule, hearsay statements are inadmissible in both the family and criminal courts, with very few exceptions.  Hearsay is defined as out-of-court statements introduced to assert the truth of a particular matter.  For example, a lawyer cannot ask a witness to repeat what someone said about his client if that statement was made outside of court, and that person is not available to be cross-examined.  However, family court matters such as custody hearings typically involve statements that are made by the child in reference to one parent's conduct.  If the other parents files a custody motion based on those statements, those statements would normally be considered inadmissible hearsay.  This results in a Catch-22, in which the filing parent is greatly limited in his or her ability to assert the truth of the other parent's conduct.

Inadmissible hearsay in family court proceedings was addressed by the Appellate Division in the 2016 ruling of Arrowood v. DiBenedetto.  The plaintiff sought to terminate her daughter's overnight visits with her father, because she was told by the daughter that her father continued to smoke in her presence.  The mother advised that this went against their doctor's orders, thereby threatening their daughter's health and well-being.  The trial court rejected various hearsay statements from the daughter, to which the appeals court made no objection, considering that the child in question has a direct interest in the outcome of the case.  In fact, the Appellate Division upheld the trial court's decision, but it did make an interesting observation about family court judges being “vested with broad discretion”.  In this case, they recognized that the court had to consider the child's best interests (her health), hence the court would have to balance the need to allow hearsay with the need to get at the truth of complicated family situations. 

However, the lower court in this case did not abuse its discretion in rejecting many of the daughter's statements.  While they recognized the frustration of the mother, “there is always a question about the exact content of such statements...”  Furthermore, there aws simply not enough evidence presented by either side to merit the termination of overnight visits for the father, so the court did not abuse its discretion on that issue, either.  On the other hand, had the court allowed those statements as admissible hearsay, it would not necessarily be an abuse of discretion, based on the special circumstances in this case.  In short, family court judges are given broad discretion, and the appeals court will more often than not, defer to their discretion.  This ruling may seem like a whole lot of nothing, but it does point out the latitude of discretion that judges have in deciding motions involving children.  It also stressed the need for parents to present clear, compelling evidence should they seek court intervention on behalf of their children.  For more information on your custody rights and legal options, please speak with the attorneys of Villlani & DeLuca, P.C.