In court, neither a party nor one of that party’s witnesses can simply claim to repeat what someone else said and expect the judge to treat it as proof.
As a general rule, if a fact matters, the person who knows it must himself or herself come to court, take an oath, and answer questions in court personally.
When someone tries to use a purported out-of-court statement to prove that what was said is true, the law calls that hearsay.
And in most situations, hearsay is not allowed. The reason is straightforward: the person who allegedly made the original statement is not there to be questioned about accuracy, memory, bias, or honesty. That safeguard—oath and cross-examination—is how courts test reliability.
What makes things more complicated is the phrase you will often hear in response to a hearsay objection: “It’s not offered for the truth of the matter asserted.”
That phrase usually appears in the middle of a hearsay objection, and it can sound like technical wordplay. But it is not. Whether a statement is offered “for its truth” determines whether the court may rely on it at all. That distinction can shape what evidence comes in, what gets excluded, and ultimately what facts the court finds.
If a statement is offered because the court is being asked to believe it is true, it is hearsay. If it is offered for some other legally relevant reason, it may not be. That is why the analysis turns on purpose, not phrasing.
Only after answering that question does the familiar phrase appear: “Not offered for the truth of the matter asserted.”
Under Utah Rule of Evidence 801(c)[1], hearsay is an out-of-court statement offered to prove the truth of what it asserts. Under Rule 802, hearsay is inadmissible unless an exception applies.
So the “not offered for the truth of the matter asserted” analysis turns on purpose, not phrasing.
Objecting lawyers and the judges they appear before analyze how the statement is actually functioning in the case.
A simple working test:
If the statement were false, would it still matter?
If the answer is no, it is being offered for its truth.
Proper Uses of “Not for the Truth”
The doctrine is real. It is not a loophole. Used properly, it is narrow and disciplined.
Effect on the Listener
Example 1: Alleged Threat
Husband testifies, “She [wife] told me, ‘I’m taking the kids and you’ll never see them again.’”
If that statement is offered to prove wife actually intended to disappear forever, that’s hearsay.
But if it’s offered to explain why husband immediately filed an emergency motion, changed the pickup location, or contacted police, then the relevance lies in the fact that the statement was made, not whether wife truly intended to follow through.
The statement explains his conduct. That is effect on the listener.
Example 2: Financial Representation
“He [husband] told me he had lost his job.”
If offered to prove husband actually lost his job, that’s hearsay.
But if offered to explain why wife agreed to a temporary reduction in child support or stopped pursuing enforcement at that time, the relevance is her reaction to what she was told.
Again, the truth of the statement is not the immediate issue. Her response is.
Example 3: Parenting Communication
“The school told me our child had been suspended.”
If offered to prove the child was suspended, that’s hearsay.
But if offered to explain why the parent immediately went to the school, sought counseling, or changed a custody exchange schedule, it may be relevant for its effect on the listener.
Verbal Acts
A verbal act is a statement that has independent legal significance simply because it was said.
Examples:
- An offer.
- An acceptance.
- A revocation of consent.
- A threat (where the threat itself is the misconduct).
In a verbal-act situation, the statement is not being used to prove that what it describes is true. It is being used to prove that the words were said—because saying them changed something legally. The legal consequence comes from the act of speaking.
That’s not hearsay at all under Rule 801, because it’s not offered for the truth of any asserted fact.
For example, when someone says, “I agree,” the issue is not whether the agreement was wise or sincere. The issue is whether those words were spoken, because speaking them can create a contract or an enforceable understanding. Likewise, when a parent says, “You do not have permission to take the children out of state,” the relevance lies in the notice itself. The court is not deciding whether the parent had good reasons. It is deciding whether consent was revoked.
That is not hearsay under Rule 801, because the court is not being asked to believe a factual claim inside the statement. It is being asked to recognize the legal effect of the words being spoken.
Limited Context
Sometimes a statement is admitted to make other admissible evidence understandable. But “context” is not a substitute for proof. The court must remain clear about the limited purpose.
Example 1: Explaining a Parent’s Response
A parent testifies:
“After she said, ‘You’re abusing the kids,’ I immediately called my attorney.”
The accusation itself may not be offered to prove abuse occurred. It may be admitted only to explain why the parent took certain steps.
The relevance lies in the reaction, not in whether the accusation was true.
If the court begins relying on the accusation itself as evidence of abuse, the context limitation has collapsed.
Example 2: Making a Text Exchange Coherent
A parent introduces a text message that says:
“That’s not what happened.”
Standing alone, that message makes no sense. The court may allow brief reference to the prior statement so the admitted text is intelligible.
But the prior statement is not admitted to prove its truth—only to make the response understandable.
Context cannot become a vehicle for proving the underlying allegation.
Example 3: Explaining a Change in Custody Schedule
A parent testifies:
“After the school informed me of concerns, I requested a modification.”
The school’s statement may be referenced to explain why the motion was filed. But it is not automatically admissible to prove that the concerns were valid.
The court must distinguish between explaining conduct and proving the underlying facts.
Example 4: Background for a Therapist Referral
A parent says:
“The pediatrician suggested counseling, so we started therapy.”
The suggestion may be admitted to explain why therapy began. It is not necessarily admissible to prove that whatever concern prompted the suggestion was factually accurate.
Substance Over Labels
Simply calling something “not offered for the truth” does not change its evidentiary character.
If a party introduces:
- “The therapist said the child is afraid,”
- “The child told me dad drinks every night,” or
- “The evaluator concluded mother is unstable,”
and the court is expected to rely on those statements to determine whether the underlying conduct occurred, the statements are being offered for their truth.
Labels do not control. Function does.
When lawyers argue about whether a statement is being offered “for the truth of the matter asserted,” they are really asking a simple question: What fact is the court being asked to believe because of this statement?
Take this example:
“The therapist said the child is afraid.”
If the court is being asked to conclude that the child is actually afraid, then the statement is being offered for its truth—and it is hearsay unless an exception applies.
If, instead, the statement is offered only to show that the therapist made that remark—perhaps to explain why a parent sought a custody evaluation—then the truth of the child’s fear is not the immediate issue.
The key is not what the words are, but what factual conclusion the court is being asked to draw from them.
Rule 803(3): The Custody Pressure Point
In Utah domestic litigation—especially custody and parent-time disputes—Rule 803(3) is where most of the tension arises.
Rule 803(3) permits statements reflecting a declarant’s then-existing:
- State of mind
- Emotion
- Intent
- Plan
It does not permit statements of memory or belief offered to prove the fact allegedly remembered or believed.
The distinction is critical.
Admissible to prove emotional state or intent:
“I am afraid.”
“I don’t want to see dad.”
“I feel anxious at mom’s house.”
“I intend to live with father.”
Not admissible to prove historical allegations:
“I am afraid because dad hit me.”
“I don’t want to see dad because he drinks every night.”
“I feel unsafe because mom leaves me alone.”
“I want to live with father because mother screams at me.”
The first proves present emotion or intent.
The second attempts to prove past conduct.
In custody disputes, the two are frequently intertwined. Emotional statements are admissible. Embedded factual accusations are not automatically admissible simply because they are attached to an emotional state.
The governing question remains:
If the statement were false, would it still matter?
If its relevance depends on the truth of the alleged misconduct, Rule 803(3) does not admit it.
Where Doctrinal Drift Occurs
Utah domestic cases are almost always bench trials. Judges are presumed capable of compartmentalizing evidence and assigning appropriate weight.
That structural reality affects evidentiary enforcement.
Statements are admitted:
- “For context.”
- “To explain conduct.”
- “To show impact.”
- “To show state of mind.”
In theory, limited-purpose admission is manageable in a bench trial. In practice, the line between limited purpose and substantive reliance can blur.
Sometimes counsel presses aggressively and stretches the categories.
Sometimes objections are not sharpened.
Sometimes busy domestic calendars encourage moving past evidentiary disputes quickly.
And sometimes evidentiary discipline simply erodes under the pressure to “hear everything” in child-related cases.
When a statement is admitted for a limited purpose but later supports a factual finding that the underlying event occurred, the limitation has collapsed.
That is doctrinal drift.
This is not an accusation of bad faith (though doctrinal drift for bad faith purposes certainly can and does occur). It is an observation about structural pressures and human tendencies. But when the distinction erodes, untested assertions can influence findings that alter parent-child relationships.
Evidentiary discipline is not ornamental. It is the mechanism that protects the integrity of factual determinations.
Recurring Domestic Case Scenarios
These disputes arise repeatedly in custody litigation:
- Alleged child statements: “The child told me dad yells at her.”
- Alleged therapist summaries: “The therapist reports the child feels unsafe.”
- Alleged custody evaluator recitations: “The evaluator states the child described alcohol use.”
- Alleged text messages: Screenshots introduced to establish alleged threats.
- Alleged financial claims: “He told me he was broke.”
- Alleged influence allegations: “She told the kids I’m dangerous.”
In each instance, the court must ask: Why does this statement matter?
If it matters because the court is being asked to believe the underlying allegation is true, hearsay analysis is required.
Limiting Instructions (Rule 105)
Under Utah Rule of Evidence 105, when evidence is admissible for one purpose but not another, the court may limit its use.
A limiting instruction clarifies:
This statement may be considered for X purpose, but not for Y.
In jury trials (and Utah divorce cases are not tried to a jury), such instructions are essential. In bench trials (divorce trials are bench trials), judges are presumed to apply these limits without formal instruction. Even so, requesting clarification of the permissible purpose can preserve analytical boundaries and sharpen the record.
A limiting instruction is not an eraser. It defines scope.
Practical Courtroom Response
When “not for the truth” is invoked, clarity matters.
A disciplined response might be:
“Your Honor, if the statement is not offered for its truth, then its factual accuracy should not influence the Court’s findings. If it is being used to prove the underlying fact, it is hearsay under Rule 801 and no exception has been identified.”
If reliance appears to extend beyond the limited purpose:
“Respectfully, Your Honor, if the Court is considering the statement as evidence that the underlying event occurred, we ask that the hearsay analysis be addressed.”
The objective is not confrontation. It is analytical precision.
A Limitation, Not a Loophole
The phrase “not offered for the truth of the matter asserted” is not a workaround. It is a limitation.
The hearsay rule exists to ensure that factual findings rest on evidence that can be tested—through oath, cross-examination, and adversarial scrutiny. In domestic cases, where custody and parent-time decisions reshape families, that safeguard is indispensable.
All participants in a divorce case (parties, lawyers, commissioners, and judges) share responsibility for maintaining evidentiary discipline. Efficiency and informality cannot replace reliability.
The question remains simple:
Why does this statement matter?
If it matters because the court is being asked to believe it is true, the hearsay rule applies—because judicial findings must rest on proof that has been subjected to examination, not on untested repetition.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] (c) Hearsay. “Hearsay” means a statement that:
(c)(1) the declarant does not make while testifying at the current trial or hearing; and
(c)(2) a party offers in evidence to prove the truth of the matter asserted in the statement.