Generally, a statement for a child offered for the truth is going to be considered hearsay. For example, if the child returns from mother’s house and says, “my mother was not home the entire weekend” this would be considered hearsay, and therefore inadmissible. There are exceptions to the hearsay rule found in Rule 803 of the Texas Rules of Evidence. Lawyers and judges are typically (but not always!) versed in the hearsay exceptions found in the Rules of Evidence. However, less experienced lawyers often overlook a hearsay exception found in the Texas Family Code for statements of abuse.
- Section 104.006 of the Texas Family Code
The Texas Family Code provides as follows:
In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:
(1) the child testifies or is available to at the proceeding in court or in any other manner provided for by law; or
(2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.
Tex. Fam. Code § 104.006
- Reliability of the Statement
In order allow testimony under section 104.006, the court must also determine whether or not statements by the children are reliable. Some factors courts have considered are: (1) whether the child understood the difference between truth and lies, (2) whether a child of her age would normally know about the matters she described, (3) whether the statements could be corroborated by other evidence, (4) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate, (5) whether the child has a motive to fabricate the statement, and (6) whether the accused had the opportunity to commit the offense. In re M.R., 243 S.W.3d 807, 813 (Tex. App.—Fort Worth 2007, no pet.); In re P.E.W.,105 S.W.3d 771, 775 (Tex. App.-Amarillo 2003, no pet.).
It is inconsequential if the statements are made to an interested witness. In In re M.R., respondent arguing against the admission of a child’s hearsay statement under section 104.006 argued that the hearsay came “from a highly interested witness”, in this case the foster mother because she wanted to adopt the child subject to the suit. In re M.R., 243 S.W. 3d at 814. The Court held that the trier of fact is the judge of credibility, but under a section 104.006 analysis, the Court must look to the evidence about the reliability of the child’s statements, not the reliability of the witness’ testimony. Id. (“The reliability referred to in article 38.072 [the criminal equivalent to § 104.006] is the reliability of the child’s declaration, not the witness relaying the child’s declaration.”)
- Availability to Testify
In addition to determining whether or not the statements describe abuse and are reliable, one of the following requirements must be met: (1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or (2) the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child. Tex. Fam. Code § 104.006(1)&(2).
- Child Available
If a child is available, then the court need not determine whether or not the welfare of the child needs to be protected. In re S.B. and Y.B., 207 S.W.3d 877, 883. The child need not actually be called; rather, it is sufficient that the child simply be available to testify. Id.; see also In re K.K., 91 S.W.3d 1, 16 (Tex. App.-Fort Worth 2002, no pet.) (“[O]nly if a child is unavailable to testify is the trial court required to make a finding that admission of the witness’ statement in lieu of the child’s testimony is necessary to protect the child’s welfare.”) If neither party indicates that the child is unavailable to testify, it should be held on appeal that the trial court had concluded that the child is available to testify. Id. (Holding that a welfare hearing was not required because absent any evidence in the record that S.B. was or was not available to testify, “the trial court could have concluded that S.B. was available to testify.”)
- Child Unavailable
If the child is determined to be unavailable, then the Court must find that the use of the out of court statements is necessary to protect the welfare of the child. Tex. Fam. Code § 104.006(2). The Court must consider evidence that the use of the out of court statements in spite of the witness’s unavailability is necessary to protect the welfare of the child. .
Crucial, if not critical, evidence in a child custody case often comes from the words of a child who will not be testifying. It is very a lawyer understands all hearsay exceptions contained in both the Rules of Evidence and the Family Code. The outcome of a case may rest on the lawyer’s knowledge and ability to educate the judge about this very important section.