Evidence Issues in Domestic Court - Special Topic Seminar for District Court Judges - Discussion Questions and Suggested Answers

Sep 15, 2026

Seminar discussion materials for district court judges on evidentiary problems that arise in domestic court proceedings, focused here on child custody disputes and testimony about a child’s preferences and well-being. The text analyzes direct examination and objections, relevance standards, hearsay treatment, and potential exceptions including Rule 801(c) and Rule 803(3). It also addresses exclusion under Rule 403 and privilege rules for psychologist-patient communications, with supporting case citations.

LanguageEnglish

CategoryGeneral

FormatPDF

Pages14

Reading Time5 min

AccessFree to download

讨论问题与建议答案

1(a) 儿童主要与母亲同住时的抚养偏好证言

1(b) 关于儿童对父亲住所不适感的陈述与证据用途

1(c) 心理学家基于治疗信息的意见及专业特权

Cheryl Howell School of Government Evidence Issues in Domestic Court Special Topic Seminar for District Court Judges April 2010 Discussion Questions and Suggested Answers 1(a). Child custody case where child has lived primarily with mother: During the direct examination of mother, her lawyer asks if the 10 year-old child has told the mother where the child prefers to live. Father’s attorney objects. Sustained or overruled? Answer: Probably overruled. Mother can testify as to what child told her about where the child prefers to live, unless you find it should be excluded pursuant to Rule 403 as unduly prejudicial. Relevance? Statement of child‟s preference is relevant if the child is of an age and capacity to form an intelligent and rational view on the matter. Hinkle v. Hinkle, 266 N.C. 189 (1966); In re Pearl, 305 N.C. 640 (1982)(nine year child old enough to form opinion). But compare Daniels v. Hatcher, 46 N.C . App. 481 (1980)(judge did not abuse his discretion in refusing to hear testimony from children ages 7, 8 and 12) with Kearnes v. Kearnes, 6 N.C. App. 319 (1969)(judge erred in refusing to hear testimony of children ages 7, 9, 11 and 12). Hearsay? If child testifies, the statement of the child to the mother will be offered to corroborate the in-court statement of the child. The statement will not be hearsay because it is offered for a non-hearsay purpose. See Rule 801(c). See State v. Aycock, 310 N.C. 1 (1984); State v. Gilbert, 96 N.C. App. 363 (1989). If child does not testify, statement is hearsay. Rule 801(c). Exception? Probably can come in under Rule 803(3), which allows hearsay if it is a statement of the child‟s “then-existing state of mind…”. See Griffin v. Griffin, 81 N.C. App. 665 (1986)(error for trial court to exclude testimony from two witnesses as to out-of-court statements made by the children about intimidation of the children by the father and the desire of the children to live with the mother). While Rule 803(3) allows hearsay statements to be introduced to prove state of mind, the rule prohibits the introduction of “a statement of memory or belief to prove the fact remembered or believed…”. See notes following question 1(b) below. Rule 403? Relevant evidence can be excluded when the probative value is substantially outweighed by the danger of undue prejudice or confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 1(b) . Also on direct, mother testifies that the child is often upset when she returns from staying at the father’s house. Can the mother testify that the child told her that the child doesn’t like being at her father’s house because his girlfriend often spends the night while the child is present? Answer: If child testifies, statement can be offered for the non-hearsay purpose of corroborating the child‟s testimony. If child does not testify, the statement of child to the mother is admissible to show the child‟s state of mind when returning from the father‟s house. Relevance? Child‟s opinion as to the custodial arrangement is relevant. See question 1(a) above. Fact that father has a girlfriend who spends the night when child is present is relevant when offered in connection with evidence that the child is affected by the condition in father‟s home. See Pulliam v. Smith, 348 N.C. 616 (1998) and Browning v. Helff, 136 N.C. App. 420(2000)(both cases indicating that evidence of sexual activity of parent is relevant to best interest determination to extent the activity impacts or affects the child). See also Green v. Green, 54 N.C. App. 571 (1981)(parent living with paramour not sufficient alone to determine custody, but relevant to the determination of best interest). Hearsay? Yes, if the child does not testify as to these facts. Offered to prove that child is does not like father‟s girlfriend spending the night when the child is present. Exception? Rule 803(3). A statement of the c

FAQs

在监护/抚养偏好争议中，母亲可否就孩子告诉她的居住偏好作证？

一般可作证，除非依据 Rule 403 认为其不当偏见等理由需排除。该陈述是否构成可采证据取决于孩子是否具备形成理性看法的年龄与能力。

若孩子不出庭，仅由母亲转述孩子对父亲住处与情绪的陈述是否可采？

可采与否取决于拟证明目的：当需证明孩子的“当时存在的心理状态”（Rule 803(3)）时通常可用；若目的仅是证明记忆或信念背后的事实，通常不在该例外范围内。

心理学家根据近期治疗会话形成意见时，相关治疗沟通是否受特权保护？

沟通通常受心理学家-患者之间的特权保护（G.S. 8.53.3），但法官在认为披露对司法公正的适当实施是必要时，仍可能下令要求在审判或先前程序中披露。

Sep 15, 2026

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