The rules of evidence can be important in any court case, even in a Washington custody case. A mother recently challenged a custody modification that gave the father primary residential custody on the grounds certain evidence should have been excluded at trial.
The children had been living with their mother and her husband in Germany. While they were in Washington for several weeks visiting their father, he petitioned to become the custodial parent. He alleged abuse in the mother’s home was harmful to the children’s physical, mental, and emotional health.
According to the court’s opinion, the father took the children to the doctor after they told him about abuse, and they were referred to a counselor. The counselor testified the children told her about several incidents of abuse and violence at their mother’s home. She said those statements helped her diagnose and treat them. She diagnosed all three children with adjustment disorder with anxiety and dysthymia, and one of them with depression.
The father and his wife testified about a Skype call with the children’s mother. According to the testimony, the mother was on the call in her vehicle when her husband yelled at her. They testified that the mother did not end the call before going into the house. They testified the husband yelled vulgar things and obscene names at the mother. They said they heard her ask him to “stop hitting.” They also said they heard the husband say, “I should hit you harder.”
The mother objected, arguing her husband’s statements were hearsay, but the trial court found the statements were excited utterances and allowed them. The mother testified she hung up before going inside to talk to her husband.
The trial court found the mother’s husband emotionally and physically abused the children and the mother failed to protect them. It also found the children’s situation had substantially changed and that making the father the primary residential parent was in their best interest.
The mother appealed. She argued the counselor’s testimony about the children’s statements was hearsay. Hearsay is a statement not made under oath that is offered to prove the truth of the matter asserted. Hearsay is not admissible unless there is an applicable exception or exclusion. Statements made for the purpose of medical diagnosis or treatment are excepted from the hearsay rule. This exception includes statements describing symptoms, medical history, or the cause, if reasonably pertinent to diagnosis or treatment. Case law holds the exception applies to mental health and can include statements made to social workers and abuse counselors.
The mother argued the statements should have been excluded as hearsay because they were the basis of the counselor’s nonmedical opinion testimony.
The appeals court found the statements were reasonably pertinent for diagnosis and treatment of the children. The children were referred to the counselor by their doctor after they reported the abuse to their father. The children knew whom they were talking to and why. The counselor testified the statements helped her diagnose and treat the children. The appeals court noted the purpose of the therapy was to diagnose the results of the domestic violence and abuse and treat the children. The appeals court therefore found no abuse of discretion in the admission of the children’s statements to the counselor.
The mother also argued the trial court abused its discretion in allowing the father and his wife to testify about the statements her husband made during the Skype call. She argued the statements did not qualify for the excited utterance exception to the hearsay rule. A statement is an excited utterance if it is made while the speaker is still under the stress of excitement caused by the startling event or condition to which the statement is related. The trial court found the statements made by the mother’s husband were excited utterances. The appeals court, however, found they were not excited utterances because there was no evidence the husband was responding to a startling event. The appeals court did find, however, that the statements were not hearsay at all. The statements were not presented for the truth of the matter asserted. The father was not using the statements to show the husband thought the children’s mother was worthless or stupid or that he should have hit her harder. The relevance of the statements was in the fact and manner of their utterance. Because they were not admitted for the truth of the matter asserted, they were not hearsay and were admissible.
The mother also argued that the trial court erred in not imposing a spoliation inference. Spoliation occurs when a party intentionally destroys evidence. When considering spoliation, a court considers the potential importance of the evidence under the facts as well as fault. The court must consider whether the party has an innocent explanation or bad faith or conscious disregard caused the loss of the evidence. Additionally, the court considers whether the party violated a duty to preserve the evidence. There is not a general duty to preserve evidence, and negligent failure to preserve evidence is generally not sanctionable. Here, the mother’s argument was that the father took screenshots of other information, but not of the Skype call in question. She argued that it was spoliation because he could not explain why. She did not argue there was anything other than negligence involved, and the appeals court found negligence insufficient to support a spoliation inference.
Because the appeals court found the evidence was admissible, it also found there was substantial evidence supporting the trial courts findings and conclusions. The appeals court affirmed the modification.
An experienced Washington family law attorney understands the rules of evidence and how they impact a custody case. If you are facing a custody issue, call Blair & Kim, PLLC, at (206) 622-6562.
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