Getting the Child Heard (February 2010)

Co-authored with the Honorable Wayne M. Creech; Material for National Business Institute Advanced Family Law CLE

1. Guardian’ testimony on the child’s statements

a. Inadmissible hearsay on issue of preference

b. Admissible on child’s living situation

2. Hearsay exceptions

a. SCRE 803

i. (1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

ii. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

iii. (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

iv. (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court’s discretion.

b. S.C. Code § 19-1-180

i. Allows certain out of court statements of child to be admitted into evidence when statement is “made by a child who is under twelve years of age or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of a family court proceeding brought pursuant to Title 63 concerning an act of alleged abuse or neglect as defined by Section 63-7-20.”

ii. Unclear whether it can be applied to custody proceedings in which abuse is alleged

iii. If child’s parents are separated or divorced, only certain classes of people can offer such hearsay: law enforcement official, an officer of the court, a licensed family counselor or therapist, a physician or other health care provider, a teacher, a school counselor, a Department of Social Services staff member, or to a child care worker in a regulated child care facility. Subsection (G)

iv. Statement must possess particularized guarantees of trustworthiness. Subsection (B & D)

v. See South Carolina Dept. of Social Services v. Lisa C., 380 S.C. 406, 669 S.E.2d 647 (Ct. App. 2008)

3. Testimony regarding parental misconduct

a. See SCRFC 23(b) (“Children should not be offered as witnesses as to the misconduct of either parent, except, when, in the discretion of the court, it is essential to establish the facts alleged.”)

b. Allowed when child is only witness to misconduct

c. Allowed when child is necessary witness to rebut allegations of misconduct or claims that misconduct did not occur

d. Should not be allowed when there are numerous other credible witnesses who can corroborate the child

4. Child’s testimony versus in chambers interview

a. See SCRFC 22 (“In all matters relating to children, the family court judge shall have the right, within his discretion, to talk with the children, individually or together, in private conference. Upon timely request, the court, in its discretion, may permit a guardian ad litem for a child who is being examined, and/or the attorneys representing the parents, if any, to be present during the interview.”

b. In chamber interview typically preferred

c. Parties and guardian provide list of questions; judge accepts the questions or notes reasons will not ask them

d. Judge asks questions with guardian and court reporter present; may rephrase otherwise proper questions to make less one-sided

e. Judge reports findings back to parties and counsel and allows for follow up questions

f. Judge may want child to testify if concerns about child being coached or encouraged to align with one parent over the other

g. If child’s preference is an issue, best way to present it

5. Preparing the child for testimony

a. Attorney who wants to interview child prior to trial to determine whether to ask child to testify or for in chambers conference with judge should ask guardian to be present. See Rules 4.3 and 4.4 of the South Carolina Rules of Professional Conduct

b. Guardian possibly required to inform other party of what child says–litigation strategy may be revealed

c. If guardian refuses to make self available for child interview, probably must move court to require guardian to do so

6. Otherwise inadmissible child hearsay

a. If you don’t object, the judge is going to allow it in

b. To avoid the impression that the child’s best interests are less important than the client’s desires, be careful to fully explain to the judge why a child’s involvement is necessary