DuPage County Divorce Lawyer Blog
In Illinois courts, there are certain types of statements that are not admissible as evidence in a court of law because they are considered “hearsay.” Generally speaking, hearsay is inadmissible because there is no way to verify the information by cross-examining the witness on the stand, when the witness got the information from another source. These rules apply to family court proceedings, such as cases involving divorce, parentage, custody, and the like.
So what exactly is hearsay? Hearsay is defined as “an out-of-court statement offered for the truth of the matter asserted.” It is a statement that was (1) either spoken or written outside of the courtroom, and (2) offered as evidence to prove whether something is true. For hearsay to be inadmissible in court, the person offering the statement in court must intend to introduce the statement not only because it was said or written, but also because it is true. For example, if a witness testifies that, “my grandpa told me it was raining last Monday,” it is hearsay if the attorney who called the witness is attempting to prove that it was, in fact, raining last Monday.
Under Illinois law, there are numerous exceptions to the hearsay rule, in which certain instances of hearsay may be used in court. One exception in particular can be extremely important in cases involving child victims under the age of 13.
The statute applies to cases involving physical or sexual acts perpetrated on or against a child under 13, years of age. Such cases include kidnapping, child abduction, domestic battery, endangering the life or health of a minor child. Under the law, the following types of hearsay might be admissible in court:
1) Testimony by the child victim that he or she made an out-of-court statement in which he or she complained of the criminal act to someone else.
2) Testimony of child victim’s out-of-court statement describing any complaint of an act or matter or detail pertaining to any act that is an element of the offense that is the subject of a prosecution for a sexual or physical act against the child victim.
Those hearsay statements by a child victim may only be admissible in court 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 testifies in court, or is unavailable to testify but there is corroborating evidence of the act described in the statement; and
3) The statement was made by the child before the child turned 13, within 3 months after the act or offense was committed, whichever is later.
Note that it doesn’t matter how old the child is during the court proceeding.
To illustrate, assume a 5-year old girl has parents in the throes of a nasty divorce. Among other things, the parents cannot agree as to custody and parenting time with the child. While the case is pending, the judge enters an order setting forth a temporary custody schedule where the dad has residential custody and the mom has reasonable visitation with the child every other weekend and every Wednesday.
One day, in violation of the temporary custody order, the mother decides that she wants to relocate herself and her daughter out-of-state to be near her family. She picks up the child early from the babysitter’s house on a night the child was supposed to be with the father. In doing so, she has just committed the offense of child abduction, [720 ILCS 5/10-5(b)] because she has intentionally violated the terms of a valid temporary joint custody order by removing the child from the jurisdiction of the court.
Further assume that the little girl tells someone, such as to her teacher or babysitter, that her mommy picked her up from the old babysitter’s house and took her to her grandma’s house in Iowa. Normally, this would be a hearsay statement that, under normal circumstances, would not be allowed in court. However, under 5 ILCS 5/115-10, this statement might be admissible in court to prove how the child wound up at her grandma’s house in Iowa.
The child’s out-of-court statement to a third party will only be admissible if, at a separate hearing regarding the issue of the child’s statement, held outside the presence of a jury, the judge finds that, under the totality of the circumstances, this evidence is more helpful in demonstrating facts to the overall case than it is harmful to the mother. Even if the judge finds that to be the case, the child then must either testify as to this prior statement at the divorce trial or be unavailable for the trial but there exists some supporting facts that confirm the child’s statement.
Illinois law creates a high procedural barrier to using a child’s hearsay statement in court, and with good reason. Doing so creates a safeguard against a witness putting words into someone else’s mouth. However, the Illinois legislature has determined that, under narrowly-defined circumstances, such out-of-court statements may be more helpful to the case than harmful against a party.