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UNLIKE IN FAMILY COURT ACT ARTICLE 10 AND 6 PROCEEDINGS, CHILDREN’S HEARSAY STATEMENTS ARE NOT ADMISSIBLE IN FAMILY COURT ACT ARTICLE 8 (FAMILY OFFENSE) PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Family Court in this family offense proceeding, in a full-fledged opinion by Justice McCarthy, determined the hearsay statements of the children should not have been admitted in evidence. Family Court had found that father committed harassment by grabbing one of the children. Although children’s hearsay has been deemed admissible in Family Court Act article 10 and 6 proceedings, such hearsay is not admissible in Family Court Act article 8 (family offense) proceedings:

Despite the extension of the exception from Family Ct Act articles 10 and 10-A to article 6, this Court has never directly addressed whether Family Ct Act § 1046 (a) (vi) can be applied in a proceeding pursuant to Family Ct Act article 8 … . The 1st and 2nd Departments have concluded that even though the exception has been applied in custody proceedings under article 6 that are founded on abuse or neglect, because Family Ct Act § 1046 (a) (vi) “is explicitly limited to child protective proceedings under articles 10 and 10-A, [it] has no application to family offense proceedings under article 8” … . This conclusion comports with the language of the statute. …

Having determined that Family Court should not have relied upon the children’s hearsay statements, we must consider whether the remaining evidence at the fact-finding hearing was sufficient to establish that the father committed a family offense. Setting aside the children’s statements to the detectives, to the mother and on the videotape, the evidence directly related to the incident is extremely limited. It includes a photograph showing a barely visible bruise on the middle child’s arm, the detectives’ evaluation of the children’s body language and the father’s testimony that he grabbed the middle child while removing him from a situation where he was misbehaving. The father testified that his intention in taking hold of the child was not to alarm him, but to get him and the situation under control. This testimony contradicts the intent required to prove harassment in the second degree and supports the father’s defense of justification, which permits a parent to use physical force to the extent that he or she deems reasonably necessary to maintain discipline … . Although the court could have disbelieved the father’s testimony and inferred his state of mind from the circumstances … , without the hearsay testimony, there was not a sufficient basis for the court to find that the father committed a family offense. Matter of Kristie GG. v Sean GG., 2018 NY Slip Op 08718, Third Dept 12-20-18

 

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