By Katherine C. Scott
In family law cases where parenting and timesharing are contested, hearsay evidence is often at issue. This is in part because the court’s analysis of the best interest of the child often requires the consideration of out-of-court statements, but also because courts typically seek to protect children from becoming involved as witnesses in these proceedings. Knowledge of the hearsay rule exceptions will assist family lawyers in determining how to present critical evidence to the court within the bounds of the rules of evidence.
Spontaneous Statement Exception
Pursuant to section 90.803(1), Florida Statutes, a hearsay statement may be admissible if it was spontaneous and described or explained an event or condition while the declarant was perceiving it. For example, in a case where a child is subjected to an act of neglect or abuse by one parent and immediately thereafter communicates with the other parent regarding what occurred, the child’s statements to that parent may be deemed admissible under the spontaneous statement exception. However, it is important to note that if the circumstances of a purported spontaneous statement indicate a lack of trustworthiness, the statement may be deemed inadmissible. Therefore, the credibility of the proponent of the hearsay statement is an important consideration.
Then-Existing Mental, Emotional, or Physical Condition Exception
Under section 90.802, Florida Statutes, a hearsay statement regarding the declarant’s then-existing state of mind, emotion, or physical sensation may be admissible when it is offered to prove the declarant’s mental, emotional, or physical state at that time. A child’s statements regarding his or her physical or mental state as a result of timesharing with one parent (i.e., “I feel anxious when I spend the night at mom’s house.”) may be deemed admissible. Again, the key to the admissibility of a hearsay statement under this exception is the credibility of the proponent.
Business Records Exception
It is often important for the court to review a child’s school or medical records when making decisions regarding parenting and timesharing. These records may be admitted into evidence without the testimony of the declarant if the following requirements of section 90.803(6), Florida Statutes, are met: (1) The record is made at or near the time of the event in question; (2) the record is made by (or from information transmitted by) a person with knowledge; (3) the record was made in the course of a regularly conducted business activity; and (4) it was the regular practice of the business to make such a record. These requirements can be proven through the testimony of a records custodian or other qualified witness. However, the proponent can avoid the need for such testimony by obtaining a written certification in compliance with section 90.902(11), Florida Statutes, from the custodian. The proponent must serve reasonable written notice on the other party that he or she intends to rely on the certification and make the evidence available in advance of offering it into evidence.
