Custody Proceedings - Evidence - Admissibility of Hearsay
Custody proceedings represent something of a hybrid. The usual rules of evidence are applied in custody cases, but experience has demonstrated that the welfare of children and the court's need for full information require some modification of the usual rules of procedure in adversary proceedings. The urgent need for reliable data, as an aid to decision-making in custody and visitation cases, has led to a relaxation of traditional adversary procedure,[1] and, at least arguably, of the hearsay rule.[2] An award of custody will be reversed if based on hearsay unless the error is harmless.[3]
All four of the New York Appellate Divisions have held that in a custody or visitation matter, the trial court may allow hearsay evidence of abuse or neglect under the authority Section 1046 of the Family Court Act.[4] 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.
[1] Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962); Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969)
[2] In People ex rel. Cusano v. Leone, 43 N.Y.2d 665, 401 N.Y.S.2d 21, 371 N.E.2d 784 (1977), where a Supreme Court order sustaining a writ of habeas corpus in a custody dispute was reversed, the court noted in a 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."
But compare Ponzini v. Ponzini, 135 Misc. 2d 468, 515 N.Y.S.2d 974 (Fam. Ct. 1987), Justice Hurley declined to follow Cusano v. Leone.
See also Matter of Leon RR, 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 (1979), which involved a proceeding to terminate parental rights due to child neglect. In reversing, the Appellate Division emphasized: "The case file admitted by the court was replete with inadmissible hearsay which played a large part in the ultimate disposition of the case."
[3] In Siegman v. Kraitchman, 30 A.D.2d 979, 294 N.Y.S.2d 1005 (2d Dep't 1968), an award of custody to the father was reversed because of the admission of hearsay evidence regarding the son's mental condition and because the mother had been denied an examination of psychiatric reports concerning herself, the father, and the son.
But see Rush v. Rush, 201 A.D.2d 836, 608 N.Y.S.2d 344 (3d Dep't 1994).
[4] See In re Nilda S., 302 A.D.2d 237, 754 N.Y.S.2d 281 [1st Dept.2003]; Loren B. v. Heather A., 13 A.D.3d 998, 788 N.Y.S.2d 215 [3rd Dept.2004]; Admissibility of Hearsay Linda P. v. Thomas P., 240 A.D.2d 583, 659 N.Y.S.2d 55 [2d Dept.1997]; Stacey LB v. Kimberly RL, 12 A.D.3d 1124, 785 N.Y.S.2d 238 [4th Dept.2004] lv denied 4 N.Y.3d 704 [2005]).
For a discussion of this exception see Chapter 2.
Custody proceedings represent something of a hybrid. The usual rules of evidence are applied in custody cases, but experience has demonstrated that the welfare of children and the court's need for full information require some modification of the usual rules of procedure in adversary proceedings. The urgent need for reliable data, as an aid to decision-making in custody and visitation cases, has led to a relaxation of traditional adversary procedure,[1] and, at least arguably, of the hearsay rule.[2] An award of custody will be reversed if based on hearsay unless the error is harmless.[3]
All four of the New York Appellate Divisions have held that in a custody or visitation matter, the trial court may allow hearsay evidence of abuse or neglect under the authority Section 1046 of the Family Court Act.[4] 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.
[1] Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962); Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969)
[2] In People ex rel. Cusano v. Leone, 43 N.Y.2d 665, 401 N.Y.S.2d 21, 371 N.E.2d 784 (1977), where a Supreme Court order sustaining a writ of habeas corpus in a custody dispute was reversed, the court noted in a 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."
But compare Ponzini v. Ponzini, 135 Misc. 2d 468, 515 N.Y.S.2d 974 (Fam. Ct. 1987), Justice Hurley declined to follow Cusano v. Leone.
See also Matter of Leon RR, 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 (1979), which involved a proceeding to terminate parental rights due to child neglect. In reversing, the Appellate Division emphasized: "The case file admitted by the court was replete with inadmissible hearsay which played a large part in the ultimate disposition of the case."
[3] In Siegman v. Kraitchman, 30 A.D.2d 979, 294 N.Y.S.2d 1005 (2d Dep't 1968), an award of custody to the father was reversed because of the admission of hearsay evidence regarding the son's mental condition and because the mother had been denied an examination of psychiatric reports concerning herself, the father, and the son.
But see Rush v. Rush, 201 A.D.2d 836, 608 N.Y.S.2d 344 (3d Dep't 1994).
[4] See In re Nilda S., 302 A.D.2d 237, 754 N.Y.S.2d 281 [1st Dept.2003]; Loren B. v. Heather A., 13 A.D.3d 998, 788 N.Y.S.2d 215 [3rd Dept.2004]; Admissibility of Hearsay Linda P. v. Thomas P., 240 A.D.2d 583, 659 N.Y.S.2d 55 [2d Dept.1997]; Stacey LB v. Kimberly RL, 12 A.D.3d 1124, 785 N.Y.S.2d 238 [4th Dept.2004] lv denied 4 N.Y.3d 704 [2005]).
For a discussion of this exception see Chapter 2.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. |
Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2023 Edition (12 volumes), Law and the Family New York Forms 2024 Edition (5 Volumes), (Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.