I hear it time and time again: clients asking why we cannot use the video or audio recording of their children in court. It can be so tempting to record your child saying that they don’t like going to dad’s house or telling you that mom yells at them a lot. And we get it. It’s incredibly frustrating to be in a position where your child is old enough to vocalize to you what they want, but not old enough to tell the court. Evidence like this is compelling, and we want to use it too. But we can’t. And why not?
For starters, hearsay rules exist to ensure that we can lend credibility to testimony and other physical evidence. Hearsay exceptions exist because if all hearsay were inadmissible, then a lot of, if not most, valuable and still credible evidence could not be considered.
In that same vein, child hearsay is inadmissible because, let’s be honest, children often lack credibility. They’re young, impressionable, and easily coached, and because of this, courts have opted to exclude child hearsay with one limited exception. O.C.G.A. § 24-8-820 provides in pertinent part that “a statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence.” First, § 24-8-820 sets forth the statements which can be admitted into evidence, and they are limited solely to statements pertaining to physical and/or sexual abuse made by children under the age of 16. This is the first limiting factor.
Second, O.C.G.A. § 24-8-820 provides that the statements shall be admissible by the testimony of the person to whom the child made the statement. In order for this testimony to be admissible, the party seeking to offer the child’s statement must provide notice of intention to use the statement to the adverse party ahead of trial and the child testifies at trial unless the adverse party forfeits or waives the child’s testimony.
So, to break all of this down, first, the statement must pertain to physical abuse and/or sexual contact. Second, the statement must only be offered via the testimony of the person to whom the child made the statement. Third notice must be provided, and the child must testify or the adverse party forfeits or agrees that the child’s testimony is unnecessary.
There are a lot of requirements, and this exception is incredibly narrow. The recording of your child crying and telling you that they don’t like going to their other parent’s house tugs on the heartstrings, and the video of your toddler clinging to your leg and telling you that daddy is mean to them breaks our hearts. And undoubtedly, every family law attorney has a number of these videos and recordings saved in their clients’ files and is very well aware that that evidence likely cannot be used.
This is not to say that you should not send these videos and recordings to your attorney. As I tell my clients, more information is almost always better than less because we don’t know what we don’t know. And what we do know is that while it’s frustrating to have all of this proof of how unhappy or potentially unsafe your child is and be unable to use it, we can also work with you to make those arguments through evidence that is admissible.
Another reason child hearsay is inadmissible is more or less to protect children from the courtroom. While I think that the “children often lack credibility” argument is the main policy reason for limiting child hearsay, the secondary reason is to ensure that your children see as little of the legal system as possible. If mom can get on the stand and tell the court that her child hates her father, dad may not have any means to disprove that, even if it’s untrue. Keeping children’s words out of the courtroom allows them the luxury of speaking freely with their parents and other adults in their lives and prevents potentially ill-intentioned folks from distorting a child’s words to harm the other party and possibly the other party’s relationship with his or her children.
The State of Georgia places a great deal of emphasis on children having both parents in their lives, unless there is evidence that this would not be in the children’s best interests. We must take our first look at each case through this lens because that is exactly what the judge is going to do. Introducing children’s statements that may reflect their anger at the situation or general discontent simply muddies the water.
The bottom line is, child hearsay is not entirely inadmissible, but unless all elements of O.C.G.A. § 24-8-820 are met, it will not be admitted. How, then, do we make an argument in line with the best interests of the child, especially when the child is making statements we cannot use?
Other physical evidence. Of course, testimony is itself evidence, but we don’t like to leave every statement up to he said/she said, so we look for physical evidence to back up the claims. Maybe your child tells you that dad doesn’t make her go to school. We’ll pull school and attendance records. Perhaps your child tells you that mom has been having different men in and out of the house. We see if there are doorbell cameras backing up that information or try to obtain the names and contact information of those people and subpoena them to testify.
While child hearsay is generally inadmissible, there are numerous ways to support a child’s statement without actually repeating the statement in court. If you’re currently co-parenting and your child has said something concerning about their other parent that you want to discuss, the Manely Firm has a number of experienced attorneys ready to sit down with you and talk about all of your options.