Few courtroom phrases are more soothing—or more dangerous—than this response to a valid hearsay objection: “I’ll admit it, but I’ll give it the appropriate weight.” The phrase sounds disciplined. It sounds fair. It also confuses two different questions: whether evidence may be considered at all, and how much weight admissible evidence deserves. When evidence is inadmissible, “appropriate weight” is not reduced weight. It is no weight.
This matters especially in child custody disputes.
Courts sometimes treat family law as if those pesky rules of evidence are too rigid for the messy human problems family courts must decide. The sentiment is understandable while still being unacceptable.
The desire for information “on my terms” does not make inadmissible evidence admissible.
Admissibility and weight are different legal concepts. Admissibility asks whether the evidence may properly be considered at all. Weight asks how persuasive the evidence is after it has properly entered the record. A court cannot avoid the first question by promising to be careful with the second.
This problem arises constantly with hearsay attributed to children. A parent testifies, “My son told me he does not feel safe at his father’s house.” A therapist reports, “The child said she feels pressured by her mother.” A custody evaluator summarizes what a child supposedly said in an interview. A PGAL tells the court what he or she believes the child wants, fears, or means. The child is not testifying. The words may not be recorded. The exact question may be unknown. The tone, context, timing, and surrounding circumstances may be missing. Yet the court is asked to consider the statement because it seems important. No matter how “important” the issues, that does not mean the inadmissible becomes admissible.
Child hearsay is uniquely pernicious because it arrives wrapped in concern for the child. No judge wants to appear indifferent to what a child said. No lawyer wants to sound as if he or she is trying to silence a child. That is why hearsay attributed to children can be so dangerous. The alleged statement may carry enormous emotional force while being almost impossible to test.
The “appropriate weight” response often leaves those questions unanswered. Worse, it allows the damaging statement to enter the judge’s mind while sidestepping the reliability problem. Once the court has heard that a child supposedly said, “I am afraid of Dad,” or “Mom tells me what to say,” that statement cannot realistically be unheard. Judges are trained to separate proper from improper evidence, but the rules of evidence exist partly because human beings are not as good at compartmentalizing prejudicial information as we like to think.
And the “best-interest of the child” standard is not a “get out of admissibility jail free” card either. It may actually make the problem more urgent.
A court deciding a child’s best interest needs reliable information. Unreliable evidence does not become reliable because the case involves a child or because the story is scary. If anything, the stakes demand greater care. A parent’s relationship with his/her child should not be restricted, damaged, or redefined based on paraphrase, impression, or secondhand claims that cannot be meaningfully tested.
Nor does protecting children require courts to accept unreliable shortcuts. If the child’s views or experiences matter, courts have better tools available. The court can conduct a properly structured in camera interview on and for the record. The court can thus make clear findings about what evidence it is considering and why. If a hearsay exception applies, the court can identify it. If an expert relies on out-of-court statements, the court can distinguish between material reasonably relied upon by an expert and inadmissible hearsay offered for its truth. If the evidence lacks foundation, the court can exclude it.
None of this requires children to be dragged unnecessarily into the center of litigation. It requires courts to stop letting adults use children’s alleged statements as an evidentiary workaround.
There is a meaningful difference between hearing a child and admitting unreliable hearsay attributed to a child. Courts should hear children when appropriate. Courts should not allow parents, experts, therapists, evaluators, or PGALs to launder inadmissible evidence by appealing to sympathy.
“I’ll give it the appropriate weight” may sound careful, but it is not a substitute for an evidentiary ruling. If the evidence is admissible, admit it and weigh it. If the evidence is inadmissible, exclude it. That is not formalism. It is the minimum discipline required when courts make decisions that can alter a parent-child relationship for years.
The appropriate weight for inadmissible evidence is zero.
Utah Family Law, LC | divorceutah.com | 801-466-9277