Attorney Christopher A. Pearsall

Imagine that you have a divorce that is pending before the Rhode Island family courts.  Your children are visiting with their father and you find out from the children that your children have been in the presence of a third-party female that you aren't familiar with.  You don't know anything else other than what your children have told you that a woman has been around with their father from time to time.  There is no indication that this woman is over frequently but the children seem to like her and you are concerned that the children are being exposed to an improper influence.

You contact your lawyer and want to go before the family court to stop the exposure of your children to this woman because you think that it is a new girlfriend that your husband has.  Your lawyer is hesitant but files a motion to restrain and enjoin your husband from having the children in the presence of any woman who is not related to either of the parties.

Your attorney goes into court and the judge asks your attorney what evidence, if any, that has been obtained in support of the motion to restrain this father from having the children around ANY third-party female.  Your attorney mentions that he minor children have been telling their mother that this woman is around them when they have visitation with their father.  The judge asks if their is anything else.  The attorney answers "No".   The judge denies the motion.  The mother of the children is furious that the judge denied the motion when he or she was given the information.

The mother's attorney tries to explain the technicalities regarding the rules of evidence but she doesn't want to hear it.  The mother believes her children are telling her the truth and they have no reason to lie.  The attorney explains that minor children are not allowed to testify before the court due to their age and because they may be counseled by one or the other parent to provide an altered representation of the events.  The attorney also explains that children are not considered a reasonably reliable source of information before the court, especially when it comes to restraining an adult from his right to be around other people.  The mother is not happy and doesn't understand.

Evidence must be relevant to the subject matter of the case.  Evidence also must be presented under oath by a person capable of understanding the court's oath and the consequences of disobedience of that oath.  Evidence also must be reliable and cannot be hearsay or must be an exception to the hearsay rules of evidence.  Children do not fall within the standard of reliability necessary to satisfy a court proceeding in order to make a valid decision.  Children also do not have sufficient appreciation of what it means to take an oath and what the consequences may be if they do not tell the truth.

At best, the information from a child is very often only information that a parent can used to follow up on in order to verify or disprove what the child has said.

Young children and their statements are not normally considered evidence before the court, though the court has discretion to consider whether the child may be considered reliable and whether the child is old enough to appreciate the significance of the oath he or she must take.

In the end, it is best not to rely upon statements of minor children to win any hearing in family court.  Develop the information and be able to testify to it personally yourself and your are in a better position to prove your case.

Many Rhode Island Divorce lawyer wants to help you to the extent they are able.  Yet one of the most difficult things for clients to grasp is the answer to one basic question.  Here's the question.

What constitutes evidence in a Rhode Island Divorce proceeding?

There is very little that is as frustrating to a spouse than to believe you have evidence and then learn that you do not.

This example should help illustrate what I mean.

Carl and Danette have been married for four years and are getting a divorce.  Temporary Orders are issued by the court ordering that

"Neither spouse may not have unrelated persons of the opposite sex overnight while they have possession of the minor child."

The minor child is a 5 year old little boy named Josh who has just started kindergarten.  Carl picks up Josh after kindergarten for his overnight visitation with his son on Monday evening.  Josh is chattering away and is all excited to tell his father about his weekend.  Josh tells his father about running and kicking the ball with mommy, painting faces on balloons, and having a camp out with Bobby.  Carl asks about Bobby and finds out that he is mommy's new friend.  Carl changes his focus and asks about the camp out.  Little Josh wants to tell every detail about how Bobby does magic tricks and stayed with him and mommy in a tent in the backyard to protect them because mommy was afraid of bears that might come out at night and eat them.  Josh said that he told mommy he was scared too and he would feel safer if Bobby was there.  Carl asked Josh what they all did the next morning.  Josh told his daddy that Bobby made them pancakes first thing in the morning with little chocolate chips in them and Josh thought they were the best. 

On Wednesday, Carl calls his lawyer and tells him he has evidence that Danette violated the court's order.  Carl meets with his Rhode Island Divorce lawyer and tells him everything that Josh said about mommy's new friend, Bobby.  Carl's lawyer begins trying to explain Carl that even though he may have information from his son, he does not have evidence.  Carl insists he has evidence .  Carl insists that he is entitled to tell the judge about the "campout" Josh had with his mother and Bobby to prove that she broke the court's order. 

Carl's lawyer explains that the information is hearsay and that since Josh can't be put on the stand to testify it is not admissible as evidence in court and therefore the court will not consider it.  Carl demands that his lawyer file a Motion to adjudge Danette in Contempt.  Carl insists because he is certain from speaking with his son that Danette has violated the Order.  Since Carl's lawyer could question Dannette about Bobby and discover based upon the information Carl has that Danette violated the court's order, Carl's lawyer does as his client demands him and files a Motion to Adjudge Danette in Contempt, believing that there is a basis that a violation is occurring and that this has the potential to endanger the child in violation of the court's order.

To make a long story short, the hearing is had three (3) weeks later.  Carl takes the stand and begins to talk about what Josh told him.  Danette's lawyer objects to the testimony as unreliable as hearsay and requests that Carl's brief testimony before even mentioning Bobby be stricken from the record.  The lawyer's objection is sustained and  Carl's testimony is stricken from the record.  Without any direct personal knowledge of the events of the campout, Carl is unable to testify further and steps down from the witness stand.  Carl asks if Josh can speak with the judge and tell the judge what happened.  Carl's lawyer instructs him that the court will not consider the statements of a 5 year old as evidence in a divorce proceeding and that he is not of sufficient age and maturity to appreciate the oath and the nature and significance of not only telling the truth but telling exactly what occurred rather than what Josh remembers at this time.  Carl's lawyer explains that even trying to call Josh as a witness is likely to upset the judge because Carl would rather risk traumatizing his child in order to prove that his wife violated an order.  Carl is frustarted but tells his lawyer to press forward and question Danette.  Carl's lawyer explains that if Carl has been wrong about this allegation and the court finds that the motion was premature, that Carl could be ordered to pay Danette's lawyer's fees for defending the motion.

Carl is adamant that he wants to go forward with the motion.  Carl's lawyer calls Danette to the stand  and asks her about  any events on that particular weekend with Josh.  Danette admits they had a campout but denies that the court's order was violated.  Danette admits that Bobby is a new friend of hers, that a "camp out" occurred in her backyard and was planned for Josh's enjoyment.  Danette admits that she is not related to Bobby and upon further questioning admits that Bobby spent the entire night of the campout. 

Carl seems satisfied that his lawyer has proven that Danette has violated the order.  He crosses his arms andcan't wait to hear the court's punishment.  Carl is unmoved and unconcerned about any questions that Danette's lawyer may have and he was sure that Josh's statements had come out just as clearly by his lawyer's questioning even if he would have rather told Josh's story himself.  Danette's attorney and asks a single question.

"Who is Bobby?"

Danette's answer is brief.

"She's a girlfriend I met at a divorce encounter group.  I had a bad session and she thought up this overnight thing to help me through this without Josh knowing.  Josh had fun.

Danette's lawyer rested her case.  Carl's lawyer did not ask any questions.  The judge denied the Motion for Contempt, found that it was baseless and ordered Carl to pay Danette's lawyer's fees for having to defend a frivolous motion that was filed prematurely without even knowing or confirming that Bobby was not even "of the opposite sex."

The point of this particular article is that you need to trust that your Rhode Island Divorce Lawyer knows what he or she is doing and that when you are told by your lawyer that you have "information" but not "evidence".   That your lawyer knows the difference and can explain it to you.  Typically "information" can be verbal or somekind of recorded material that is helpful but would not be admissible under the Rules of Evidence effective for the Rhode Island Family Court.  Evidence consists of verbal statements, documents, recordings or other things that comply with the Rules of Evidence effective for the Rhode Island Family Court and are admissible in a family court proceeding such that they may be considered by the judge in making a decision on the motion, case or controversy presented to the court.

When taking time to speak with your Rhode Island divorce lawyer about your  case or any motions that may be pending and require the production of evidence to be considered by the court, the client should always consider . . . is what I have to provide to my attorney on my behalf truly evidence or is it merely information that might lead to evidence if you or your lawyer look a little harder or do some investigation.

Knowledge is the key to a good case position both for you and your divorce lawyer.