Does your child see a counselor or therapist? If this question were asked twenty years ago the answer would almost certainly be, "No." However, in recent years it seems that more and more children are being seen by psychiatrists, therapists, and counselors. I won't speculate on why this is but I think people are becoming more comfortable with seeing a counselor for their mental struggles. Children are among the groups of people who increasingly now see these professionals regularly.
If you are involved in a child custody or divorce case then your child’s preferences are as far as where he will live primarily may be extremely relevant to your case. If your child is 12 years or older and you file a motion to have your child confer with the judge privately, then the judge must grant that request and speak to your child. On the other hand, if your child is under the age of 12 you can still file that motion but the judge can choose whether or not to grant the motion or not.
This can put you in a tricky position. If you are wanting to submit evidence that you should be named as the parent with the exclusive right to determine the primary residence of your child you are likely to want to submit any evidence that can be used to assert that you are the best positioned of you and your spouse to have this right. What if your child has spoken to their counselor about this subject and has voiced the opinion that he wants to live with you? Doesn’t this seem like it would be relevant to the discussion at hand?
Hearsay prevents out of court statements from coming into evidence
Typically, any out of court statement by your child that is repeated in court by another person cannot be made a part of the evidentiary record when that statement is used to prove the matter being asserted. So, if you are arguing that your son wants to live with you full time and then you attempt to offer the testimony of your uncle who would tell the judge that your son told him that he wants to live with you, that would not be allowed.
There is an issue related to credibility and trustworthiness of evidence likes this. The basic premise is that your opponent cannot cross-examine the person who made the statement due to their not being the one who testified to the statement itself.
Why family law has an exception to this rule
Ask any practicing attorney about hearsay and he or she will tell you that it is a part of their every day lives if they practice inside of courtrooms. The rule against hearsay and the exceptions to that rule are something that we learn while in law school. This is all to say that hearsay is an established rule of evidence and a part of every civil and criminal trial lawyer’s book of do’s and don’ts.
However, when it comes to family law the state legislature has seen fit to allow the court (your judge) greater latitude to protect the interests of your children. They have created an exception to the hearsay rule regarding allowing a child's therapist or counselor to testify about what your child told him or her during therapy sessions. The detail that you need to be aware of is that these statements must not be offered to prove the truth of the matter asserted.
So, for example, you would not be able to put the therapist on the witness stand to tell the judge that your child told her that she wants to live with you after the divorce case. Reason being that the reason you are doing so would be to prove the truth of the matter asserted- that your child wants to live with you full time after the case. On the other hand, if you brought the therapist to the witness stand to state that your child told her that knows that at the end of the case she will either be living with her mom or dad full time, this would be allowable. That statement would have been made to show that someone in your child’s life has told her what happens at the end of a divorce case.
Another exception to the hearsay rule that may be relevant in your divorce trial
You may be able to have your child's therapist come in and testify about the way that your child had been feeling in the past about some aspect of their life. For instance, you may be attempting to make a point to the judge that your child has been improving in their mental health or the classroom because you want to show the judge that your child had an intent to want to move in with you previously.
Your child’s therapist may be the only person available who can testify about something that your child had said previously on this subject, who does not fall victim to the rules against hearsay testimony.
What about a statement made to diagnose a medical problem that your child has?
The Texas Rules of Evidence do not bar hearsay statements that are made to diagnose or treat a medical condition. This relates to pain, symptoms, or sensations that relate to a specific medical condition. Counselors or therapists can make medical diagnoses for your child and as such otherwise hearsay statements can fall within this rule.
How is this relevant in a case like yours? Well, for a moment let’s suppose that your case isn’t a divorce, but is a Child Protective Services (CPS) related child custody case. The key issue to this case was whether or not your child’s father was molesting your child. You are attempting to have evidence admitted into the record that would weaken your child’s father’s contention that he should be named as a joint managing conservator of your child.
You are attempting to argue that due to the ongoing CPS case against your child’s father, he should not be able to be around your child for the time being. This is a heavy burden put you on in terms of submitting evidence to support that position. An ongoing CPS case is not necessarily evidence of wrongdoing by your child’s father. However, what can be evidence is testimony from your child’s counselor that your child has spoken about incidents of inappropriate behavior by the father.
Even your child's caseworker from CPS can be asked to come and testify in similar circumstances. Texas courts have ruled that a person in this position can testify about out of court statements made by a child about allegations of abuse. The basis for this is that Texas courts have held that the exception to the hearsay rule was drafted without the requirement that the statements were made to a medical doctor or physician.
What else do you need to know about hearsay evidence?
At this point, you may be thinking, "Why are we talking so much about hearsay and evidence? Isn't that stuff that my lawyer should be concerned about?" Well, yes and no. Yes, your attorney should be well versed in procedural rules and the rules of evidence. An attorney who is both knowledgeable and crafty when it comes to these areas of the law can be a great person to have in your corner when it comes to your divorce. If you hire an attorney who does not know the law in these areas, you are at a major disadvantage.
On the other hand, you need to know about these issues because this is your case and not your attorney’s. Placing your trust in the attorney while having no idea about how anything in your case works is a bad idea. Your attorney is there to teach and guide you, in a perfect world. You make the decisions in your case- your attorney does not. You want to be an informed participant and not a mere, uninformed spectator of events.
With that said, maybe your divorce doesn’t involve children. Maybe yours is one that is centered more around bad deeds committed by your spouse against you and your marital union. Often clients find out about bad deeds and bad decisions via social media. That's the world that we live in- a lot of people cannot do anything in life without documenting it online. How you and your attorney can turn a simple social media post into evidence that can be used to your advantage in a divorce trial is up to you all.
The impact of social media on your divorce
We all know from our daily lives that social media is everywhere. Our friends, our co-workers and even our elderly relatives all have social media profiles. No longer is it the case where we have to pick up the phone and call someone to get in touch with him or her. Rather, we are now able to merely type of a few words online and get a response almost instantaneously. Writing letters has been replaced by writing messages on social media websites. Face to face interactions has been replaced by anything but personal contact.
Social media is important in family law cases. It has become increasingly important in the last five to ten years, as we live our lives more and more online. When you see your online life take on a life outside of the computer or phone, it can cause you to step back and re-evaluate the things that you have posted. However, this isn't a blog post about becoming more selective about your social media usage. We are here to discuss how social media may be relevant to your family law case. Let’s start by talking about how social media use can ultimately be harmful to your case.
Social media usage: a lot of downsides, not much upside
You may not consider a particular post you made online to be important or potentially harmful to your life at the time you click “send” or “post.” However, it happens all the time that people involved in family law cases shake their heads in frustration at a seemingly harmless post made years ago, and how it is now hurting their family law case.
Think about the people you spend your time with, the activities you engage in, the articles you share with friends and even the words you use on your profile. If you wouldn’t want to show that to your grandmother, do you want to show it to the judge in your case? The bottom line is that you need to be smart and judicious with how you choose to make use of social media. If you are in doubt as to whether or not you should post something online, the smart play is to not do it.
Here is my thing that I will tell clients: if you don’t post something online does not doing so make it that the event never took place? Will your memories of the event fade? Probably not- you have the photos on your phone or computer where you can access them whenever you want. Are you worried about not being able to share that great experience with your friends? Don’t be. Give them a call and tell them over the phone. If it was something you’re not overly proud to show online, you can still convey your message to friends and keep your privacy intact online.
More on social media, text messaging and evidence in tomorrow’s blog post
We have just gotten started in our discussion of how social media and text messages can be used for or against you in a family law case. We will continue to discuss this topic tomorrow in our blog post.In the meantime, if you have any questions about the content contained in today’s blog, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office where we can answer your questions and provide direct feedback to you about your specific circu