Code and caselaw on hearsay evidence re minor children

[DecentDad]

Hi Soc,

I've spent a bit of time trying to locate caselaw where a teacher testified to hearsay statements a child made.

There are several cases where hearsay exceptions are found to be reasonable in cases of sexual abuse and significant physical abuse.  But it's usually corroborated by other evidence (i.e., medical examiner, numerous hearsay witnesses)... so no single incident of hearsay is the entire case.

I've seen no case where teacher's testimony is the ONLY evidence, as to child's single statement about being scared of monsters in my home and not being allowed to hug a teddy bear (i.e., the essence of what I face, given that teacher didn't even comment on observing child's demeanor when with me nor did she report any history of anxiety in the child).

I don't see how hearsay exception rules of Evidence Code 1240 would apply here, right?

1.  So, how do I argue it if there's NO caselaw specific to teacher's reported hearsay of child's "slight emotional discomfort" (at best) because no litigant AND judge have jointly been stupid enough to cause an appellate ruling?

2.  Or do I just object as inadmissible hearsay, and let biomom then argue to admit it?

DD

[socrateaser]

>I don't see how hearsay exception rules of Evidence Code 1240
>would apply here, right?

The evidence is not hearsay. It's double hearsay. There is the out-of-court declaration made by the teacher, and what the child said.

The document is hearsay unless the requirements of EC 1271 are satisfied:


1271.  Evidence of a writing made as a record of an act, condition,
or event is not made inadmissible by the hearsay rule when offered to
prove the act, condition, or event if:
   (a) The writing was made in the regular course of a business;
   (b) The writing was made at or near the time of the act,
condition, or event;
   (c) The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and
   (d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.

As I recall, this declaration was not made in the "regular course of business." Rather, the declaration itself states on its face that it was made at the REQUEST of the mother. So, this is not a business record, because the declarant had no business duty to record the child's statements -- she was doing it merely at the mother's request. Therefore it is out of the scope of regular business and not admissible without the testimony of the teacher.

You can also argue facts related to the other three factors, but I doubt you'll need to.

Also, make sure that the court knows this is a private school, because there is a public employee official records exception that would get the declaration in, if the judge mistakenly believed that the teacher worked for the school district.

>2.  Or do I just object as inadmissible hearsay, and let
>biomom then argue to admit it?

This is the tough part. In a motion hearing, a declaration is not inadmissible merely because it's hearsay. It's only hearsay at trial -- at a preliminary hearing it's admissible.

However, your goal here is to make the court aware that the mother's entire case rests on this one declaration, and that everything else she is presenting, she has alleged in past motions which were previously denied. So, the court is basing its decision to go forward on nothing other than what may very well have been suggested to the teacher by the mother, who is also the teacher's assistant in class.

Moreover, if the court actually makes a temporary modification to the current parenting plan it will be depriving you of your parenting rights without giving you any opportunity to cross examine the teacher or the mother to test either of their credibility. In short, the evidence is substantially more prejudicial than probative without your opportunity to cross examin the declarant.

I wouldn't get too hung up on this part of your response. Seems to me you have some better evidence to show that the mother has recently kept security items from being taken to your home by the child on her own responsibility.  That would seem to be the best response to this nonsense.

Not that you should CYA.

[DecentDad]

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