Admissibility of Evidence - Exceptions to the Rule against Hearsay - Evidence of Abuse or Neglect in Custody and Child Protective Proceedings
The Court of Appeals carved out an exception to the rule against hearsay for evidence of abuse or neglect in custody cases and child protective proceedings. In People ex rel. Cusano v. Leone,[1] where a Supreme Court order sustaining a writ of habeas corpus in a custody dispute was reversed, the Court of Appeals noted in passing, by way of footnote, that, "in the dispositional hearing, as opposed to the fitness hearing, hearsay testimony may be considered as long as it is material and relevant and its use would not be a breach of traditional notions of fairness." The Court relied on Section 1046 of the Family Court Act, which relates to the admissibility of a child's hearsay statements in an abuse or neglect proceeding. Although not revisited by the Court of Appeals, all of the Appellate Departments have held that in a custody or visitation matter, the trial court may allow hearsay evidence of abuse or neglect under the authority of section 1046 of the Family Court Act.[2] However, such evidence is not admissible in a family offense proceeding.[3]
Evidence of previous statements made by the child relating to any allegations of abuse or neglect may be admitted in court if they are corroborated by any other evidence tending to support the reliability of the statements, in order to present a prima facie case.[4]
[1] People ex rel. Cusano v Leone, 43 N.Y.2d 665, 401 N.Y.S.2d 21, 371 N.E.2d 784 (1977).
[2] Linda P. v. Thomas P., 240 A.D.2d 583, 659 N.Y.S.2d 55 (2d Dept.1997) (modification premised on allegations of sexual abuse of the child by the father); Albert G. v. Denise B., 181 A.D.2d 732, 580 N.Y.S.2d 478 (2d Dept.1992) (child made allegations that his mother used cocaine in his presence and attempted to have him take cocaine); Pratt v. Wood, 210 A.D.2d 741, 620 N.Y.S.2d 551 (3rd Dept.1994) (in the maternal grandparents' custody case alleging abuse, the court admitted the child's statement that "he was afraid to live with his father because he put a knife to his throat and, during a scheduled visitation, had choked him and hit him in the eye"); Peter S. v. Cheryl A.S., 190 A.D.2d 1038, 593 N.Y.S.2d 656 (4th Dept.1993) (child's statements to the mother and social workers that the father had sexually abused his young daughter were admitted. The appellate court found that the corroboration requirements contained in FCA §1046(a) (vi) which by its terms is expressly applicable to article 10 proceedings, was not applicable to this article 6 proceeding).
In re Nilda S., 302 A.D.2d 237, 754 N.Y.S.2d 281 (1st Dept.2003) (child's statements admitted in joint hearing on family friend's petition for custody which was tried contemporaneously with the pending neglect petition); Loren B. v. Heather A., 13 A.D.3d 998, 788 N.Y.S.2d 215 (3rd Dept.2004) (custody case raising allegations of abuse based on child's statement that the "father hurt her, that he was a 'bad boy' and that he hurt her 'booty,' which she pointed out as her vagina"); Stacey LB v. Kimberly RL, 12 A.D.3d 1124, 785 N.Y.S.2d 238 (4th Dept.2004) (after joint custody order was entered, the mother "abused or neglected the child and entered into two romantic relationships involving issues of domestic violence" and the court admitted the statements of the child because of the allegations of abuse and neglect).
[3] In Khan-Soleil v. Rashad, 108 A.D.3d 544, 969 N.Y.S.2d 104 (2d Dept., 2013), a family offense proceeding, the Appellate Division held that contrary to the mother's contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a hearing under article [10] and article ten-A of the Family Court Act (Family Ct Act § 1046[a] ), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 ,where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case.
[4] In Rosario WW. v. Ellen WW, 309 A.D.2d 984, 765 N.Y.S.2d 710 (3rd Dept.2003) the court admitted the mother's testimony "revealing statements of the children as to conduct by the father that would constitute acts of abuse and neglect" because it was corroborated by other evidence.
In Mateo v Tuttle, 26 A.D.3d 731, 809 N.Y.S.2d 699 (4 Dept., 2006) the Court held that it is well settled that there is "an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family Ct. Act § 1046(a) (vi)”, where, as here, the statements are corroborated.”
In Heather B. v Daniel B, 125 A.D.3d 1157, 4 N.Y.S.3d 362 (3 Dept., 2015) the Appellate Division held that the testimony of the father's psychiatrist, Kanchan Mahon, concerning the older child's out-of-court statements were not inadmissible hearsay. A child's out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence. The degree of corroboration required is relatively low, and the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration. Mahon testified that the older child disclosed that, after each time he saw his attorney, the mother and her live-in paramour questioned him at length about what he told the attorney, "until usually he crie[d]”. After one visit with his attorney, followed by questioning by the mother, she became so upset that she took away the children's toys. According to Mahon, the child recounted another incident in which the mother "told him not to wake her up for anything ... after saying that their dog might die in the night of a brain hemorrhage." He was "very frightened" and urinated in his pants while speaking with his father on the phone. Mahon and the father also testified that the mother requested the children's records from Mahon and thereafter confronted the older child about specific conversations that he had with Mahon, such as telling Mahon that he loved the mother 10% and loved the father 110%. The mother confirmed that she asked her son about information contained in Mahon's records. Supreme Court did not abuse its discretion in admitting this testimony on the basis that the mother's conduct constituted emotional abuse and that such testimony was sufficiently corroborated.
The Court of Appeals carved out an exception to the rule against hearsay for evidence of abuse or neglect in custody cases and child protective proceedings. In People ex rel. Cusano v. Leone,[1] where a Supreme Court order sustaining a writ of habeas corpus in a custody dispute was reversed, the Court of Appeals noted in passing, by way of footnote, that, "in the dispositional hearing, as opposed to the fitness hearing, hearsay testimony may be considered as long as it is material and relevant and its use would not be a breach of traditional notions of fairness." The Court relied on Section 1046 of the Family Court Act, which relates to the admissibility of a child's hearsay statements in an abuse or neglect proceeding. Although not revisited by the Court of Appeals, all of the Appellate Departments have held that in a custody or visitation matter, the trial court may allow hearsay evidence of abuse or neglect under the authority of section 1046 of the Family Court Act.[2] However, such evidence is not admissible in a family offense proceeding.[3]
Evidence of previous statements made by the child relating to any allegations of abuse or neglect may be admitted in court if they are corroborated by any other evidence tending to support the reliability of the statements, in order to present a prima facie case.[4]
[1] People ex rel. Cusano v Leone, 43 N.Y.2d 665, 401 N.Y.S.2d 21, 371 N.E.2d 784 (1977).
[2] Linda P. v. Thomas P., 240 A.D.2d 583, 659 N.Y.S.2d 55 (2d Dept.1997) (modification premised on allegations of sexual abuse of the child by the father); Albert G. v. Denise B., 181 A.D.2d 732, 580 N.Y.S.2d 478 (2d Dept.1992) (child made allegations that his mother used cocaine in his presence and attempted to have him take cocaine); Pratt v. Wood, 210 A.D.2d 741, 620 N.Y.S.2d 551 (3rd Dept.1994) (in the maternal grandparents' custody case alleging abuse, the court admitted the child's statement that "he was afraid to live with his father because he put a knife to his throat and, during a scheduled visitation, had choked him and hit him in the eye"); Peter S. v. Cheryl A.S., 190 A.D.2d 1038, 593 N.Y.S.2d 656 (4th Dept.1993) (child's statements to the mother and social workers that the father had sexually abused his young daughter were admitted. The appellate court found that the corroboration requirements contained in FCA §1046(a) (vi) which by its terms is expressly applicable to article 10 proceedings, was not applicable to this article 6 proceeding).
In re Nilda S., 302 A.D.2d 237, 754 N.Y.S.2d 281 (1st Dept.2003) (child's statements admitted in joint hearing on family friend's petition for custody which was tried contemporaneously with the pending neglect petition); Loren B. v. Heather A., 13 A.D.3d 998, 788 N.Y.S.2d 215 (3rd Dept.2004) (custody case raising allegations of abuse based on child's statement that the "father hurt her, that he was a 'bad boy' and that he hurt her 'booty,' which she pointed out as her vagina"); Stacey LB v. Kimberly RL, 12 A.D.3d 1124, 785 N.Y.S.2d 238 (4th Dept.2004) (after joint custody order was entered, the mother "abused or neglected the child and entered into two romantic relationships involving issues of domestic violence" and the court admitted the statements of the child because of the allegations of abuse and neglect).
[3] In Khan-Soleil v. Rashad, 108 A.D.3d 544, 969 N.Y.S.2d 104 (2d Dept., 2013), a family offense proceeding, the Appellate Division held that contrary to the mother's contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a hearing under article [10] and article ten-A of the Family Court Act (Family Ct Act § 1046[a] ), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 ,where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case.
[4] In Rosario WW. v. Ellen WW, 309 A.D.2d 984, 765 N.Y.S.2d 710 (3rd Dept.2003) the court admitted the mother's testimony "revealing statements of the children as to conduct by the father that would constitute acts of abuse and neglect" because it was corroborated by other evidence.
In Mateo v Tuttle, 26 A.D.3d 731, 809 N.Y.S.2d 699 (4 Dept., 2006) the Court held that it is well settled that there is "an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family Ct. Act § 1046(a) (vi)”, where, as here, the statements are corroborated.”
In Heather B. v Daniel B, 125 A.D.3d 1157, 4 N.Y.S.3d 362 (3 Dept., 2015) the Appellate Division held that the testimony of the father's psychiatrist, Kanchan Mahon, concerning the older child's out-of-court statements were not inadmissible hearsay. A child's out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence. The degree of corroboration required is relatively low, and the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration. Mahon testified that the older child disclosed that, after each time he saw his attorney, the mother and her live-in paramour questioned him at length about what he told the attorney, "until usually he crie[d]”. After one visit with his attorney, followed by questioning by the mother, she became so upset that she took away the children's toys. According to Mahon, the child recounted another incident in which the mother "told him not to wake her up for anything ... after saying that their dog might die in the night of a brain hemorrhage." He was "very frightened" and urinated in his pants while speaking with his father on the phone. Mahon and the father also testified that the mother requested the children's records from Mahon and thereafter confronted the older child about specific conversations that he had with Mahon, such as telling Mahon that he loved the mother 10% and loved the father 110%. The mother confirmed that she asked her son about information contained in Mahon's records. Supreme Court did not abuse its discretion in admitting this testimony on the basis that the mother's conduct constituted emotional abuse and that such testimony was sufficiently corroborated.
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