If you have ever been involved in a custody dispute or attended a family court hearing, you have probably heard an attorney object to testimony as “hearsay.” While the term is commonly used, many parents are surprised to learn that some of the evidence they believe is most important may actually be inadmissible because of the hearsay rule.
In family law cases, parents frequently want to testify about what a child said, what a teacher reported, what a counselor recommended, or what relatives have observed. While those statements may seem relevant, the rules of evidence generally require the court to hear information directly from the person who made the statement, rather than through someone else.
What Is Hearsay?
Hearsay is an out-of-court statement that is offered in court to prove the truth of what the statement asserts.
For example, suppose a mother testifies:
“My daughter told me that Dad lets her stay up until midnight every night.”
If that statement is being offered to prove that the father actually allows the child to stay up until midnight, it is generally hearsay. The child, not the mother, is the person with firsthand knowledge of the alleged fact.
The purpose of the hearsay rule is simple: courts prefer evidence that can be tested through cross-examination. When the person who actually made the statement is not present in court, it becomes much harder to assess whether the statement is accurate, exaggerated, misunderstood, or entirely untrue.
Why Hearsay Comes Up So Often in Family Cases
Family law cases are unique because much of the evidence revolves around conversations rather than physical events. A parent may claim a teacher expressed concerns about the child’s grades. Another may testify that a counselor believes one parent is creating conflict. A grandparent may report what a child supposedly said during a visit.
The difficulty is that these statements often involve multiple layers of communication. By the time the testimony reaches the courtroom, the original statement may have been repeated several times. The hearsay rule exists to prevent important decisions affecting children from being based on potentially unreliable secondhand information.
Fortunately, the law recognizes that some statements are trustworthy enough to be admitted despite technically being hearsay.
Exceptions to the Hearsay Rule:
Business Records
Another frequently used exception in family court involves business records.
School records, attendance reports, report cards, daycare records, and employment records often fall within this exception. Rather than requiring every teacher, receptionist, or record keeper to appear in court, the law allows certain regularly maintained records to be introduced if proper procedures are followed. Those procedures regularly require a business record affidavit from the person who maintains the records certifying their authenticity. Of course, this rule, like many others, are multi-faceted and have several layers beyond just that basic caveat.
In custody disputes, these records can often provide a more objective picture of issues such as attendance, academic performance, and parental involvement than the testimony of either parent standing alone.
Statements Made by a Parent
Perhaps the most significant exception in modern family law involves statements made by the parties themselves.
Text messages, emails, social media posts, and recorded communications regularly become exhibits in custody hearings. If a parent sends a text admitting they forgot to schedule a doctor’s appointment, intentionally withheld parenting time, or violated a court order, that statement can often be introduced against them.
Many parents are surprised to learn that their own words may become some of the most persuasive evidence presented at trial.
Family Records
Family records can also provide an exception to the hearsay rule. This exception applies to statements concerning a person’s birth, marriage, relationship, ancestry, or other matters of family history when those statements are recorded in a traditional family record.
For example, information contained in a family Bible, genealogy chart, engraved wedding ring, portrait inscription, family scrapbook, burial marker, or similar record may be admitted as evidence of a family’s history. (See Indiana Rule of Evidence 803(13)). Courts recognize that families have long maintained these records to preserve important personal information across generations, often with no expectation that they would later be used in litigation.
In family law matters, this exception most commonly arises in disputes involving parentage, lineage, dates of birth, familial relationships, inheritance rights, or other issues where historical family information becomes relevant. Because such records are typically created and preserved for personal and memorial purposes rather than litigation, the law considers them sufficiently reliable to warrant an exception to the hearsay rule.
A Common Misunderstanding
One of the most frequent mistakes parents make is assuming that they can simply repeat what others have told them.
A parent may genuinely believe statements such as:
“The teacher told me the child has been struggling to turn in assignments.”
or
“The coach told me the child seemed upset during practice.”
or
“The school counselor told me the child was having difficulty adjusting to a recent change.”
In reality, those statements often raise hearsay concerns because the person who “told” you is not the person testifying.
That does not necessarily mean the underlying information is inadmissible. It simply means the evidence usually needs to be presented through the proper witness or under a recognized exception to the hearsay rule.
Final Thoughts
Hearsay can be one of the most confusing areas of evidence law, particularly in family court where so much of the case revolves around conversations and communications. At its core, hearsay is simply an attempt to prove a fact through someone else’s out-of-court statement.
While hearsay is generally excluded, courts recognize numerous exceptions when circumstances suggest the statement is sufficiently reliable.
For parents involved in a family law matter, a helpful rule of thumb is this: if your evidence begins with the phrase “someone told me,” or “they said,” there is a good chance that a hearsay issue may be involved. Understanding that principle can help litigants better prepare their evidence and present a stronger, more effective case before the court.
This blog was written by attorneys at Dixon & Moseley, P.C., who handle a wide variety of legal issues, be it criminal or civil in nature, throughout the state. It is written and posted for general educational purposes and is not to be construed as legal advice or solicitation for services. It is an advertisement.