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Portillo v. Martinez – The Use of Child Statements in Proving Abuse

What do you do if your child tells you they were physically or sexually abused by the other parent? For most parents, feelings of anger or pain are quickly followed by a strong desire to establish legal protections for the child. But while you may believe every word without a doubt, the truth is your child’s statement to you is considered “hearsay” under the rules of evidence and is not typically admissible in a hearing to prove that the child was in fact abused. However, two Illinois laws exist that allow the use of a child’s statement to a parent about abuse if certain conditions are met: (a) 750 ILCS 5/606.5(c) of the Domestic Relations Act (“Section 606.5(c)”), and (b) 735 ILCS 5/8-2601 (“Section 8-2601”) of the Civil Procedure Act. 

When Can Child Statements Be Admitted?

Understanding when these laws apply, their different requirements, and how to apply them in a specific situation can raise complex issues. Some of these issues were recently addressed in the Third District’s decision in Portillo v. Martinez. In Portillo, the court addressed whether Section 8-2601 or Section 606.5(c) would apply when addressing the admissibility of hearsay statements concerning abuse in the context of a petition for the entry of an order of protection under the Domestic Violence Act. In Portillo, the court held that when a parent is seeking an order of protection under the Domestic Violence Act, a court must apply Section 8-2601 when deciding whether to admit a hearsay statement made by a child.

In cases where a parent believes that physical or sexual abuse has occurred, the parent seeking protection for their child has a number of different options. The parent should first call the Department of Children and Family Services. The parent can also seek an order of protection for the child (under the Domestic Violence Act) and/or an emergency order for supervised visitation under the domestic relations laws. If the child is not going to testify about the abuse in court, the parent seeking an order of protection or supervised visitation will need to work with either Section 8-2601 or Section 606.5(c).

Understanding Which Law Applies to Your Petition

These two laws have some important differences and limitations. Section 606.5(c) appears in the Marriage and Dissolution of Marriage Act and addresses the use of a child’s statement in “a hearing concerning allocation of parental responsibilities . . .” Section 8-2601 is connected to the Domestic Violence Act, which controls the granting of an order of protection. 

Overall, getting a child’s statement admitted into evidence is more difficult under Section 8-2601 than under Section 606.5(c). Both laws require the parent trying to testify about the child’s statement to provide some type of “corroborating evidence.” While Section 8-2601 has more requirements than Section 606.5(c), when these tougher requirements of Section 8-2601 are met, the statement by itself can support the entry of an order of protection.

Corroborating Evidence

Common to both Section 8-2601 and Section 606.5(c) is the corroborating evidence requirement. What constitutes corroborating evidence will vary from case to case, but certain types of evidence stand out:

  • A statement from a doctor or other medical expert that physical abuse occurred can constitute corroborating evidence. 
  • Photos of bruising or other physical injures can corroborate a claim from the child of physical abuse. 

While other things could theoretically constitute corroborating evidence, case law does not provide a complete list. Indeed, disagreements exist between some Illinois courts concerning what can rise to the level of corroborating evidence. 

Corroborating evidence typically shows that some type of abuse occurred; it does not necessarily show who caused the harm. The existence of corroborating evidence in the form of bruises on a child shows that child was hurt, but it does not necessarily show the child was hit or who hit the child. In cases of sexual abuse, the existence of the injury typically shows that abuse occurred, but it does not show who abused the child. Given the limited information typically provided by corroborating evidence, the child’s statement is oftentimes essential.

What Can Be Admitted Under Section 8-2601?

Under Section 8-2601, a parent can testify as to what the child told them about abuse by the other parent if:

  • Corroborating evidence exists,
  • The child is “unavailable” to testify, and
  • The court conducts a hearing to determine whether the “time, content, and circumstances of the statement provide sufficient safeguards of reliability.”  

When a Child is Unavailable

What the word “unavailable” means in Section 8-2601 is not fully developed in the caselaw. Caselaw does support the argument that a very young child is “unavailable” to testify in a court hearing. For older children, the unavailability requirement in Section 8-2601 may be harder to meet and could prevent a parent from testifying as to what the child stated about the abuse.

The Reliability Hearing

The reliability hearing looks at the context surrounding the child’s statement[s] about abuse to determine if the statement[s] appears reliable. The problem with a hearsay statement is that the person accused of misconduct cannot cross-examine the person who made the statement. Simply accepting the parent’s statement about what the child said raises the concern that the parent may not be telling the truth or has embellished what the child actually said. In cases involving allegations of serious abuse, the child will probably have spoken to a number of other individuals: for example, a doctor, a social worker, a teacher, a police officer, a DCFS investigator. The child repeating the abuse statement to those individuals will make the hearsay statement more reliable. This, however, does not rule out the possibility that the parent accusing the other parent of abuse might have coached or pressured the child into making the statement. The reliability hearing is how the court can protect children from abuse while also carefully evaluating the possibility that the statement was fabricated or coached.

How is Reliability Determined for a Child’s Statement?

In Trinidad v. Augustin, 207 IL App. (1st) 17148, the court addressed the type of evidence that would support a reliability determination under Section 8-2601. The court first identified the following factors a circuit court should consider when making a reliability determination: “(1) the spontaneity and consistent repetition of the statement, (2) the child’s mental state, (3) the use of terminology unexpected for a child of similar age, and (4) the lack of a motive to fabricate.” Applying those factors, the court stated that “all of L.C.’s statements were consistent regarding when [the incident] occurred, that Augustin touched her with his hand, how he moved his hand while touching her, where on her body Augustin touched her, and that Augustin was standing while he touched her.” The court also stated that the child used language to describe the incident that one would expect a young child to use, which lessened the risk that the child was simply repeating what an adult told the child to say. The court’s decision in Trinidad shows the level of detail and specificity a court may require concerning the alleged abuse to allow the statement into evidence under Section 8-2601.

When The Application of Section 8-2601 Is Required

In Portillo, the Third District expressly held that a court must use Section 8-2601 when addressing the admissibility of a child’s hearsay statement in the context of a hearing on a petition for an order of protection. The Third District in Portillo followed the Fourth District’s decision on this issue in Arika v. Christopher, 2019 IL App. (4th) 190125, which followed the reasoning of the Second District in Marriage of Flannery, 328 Ill. App.3rd 602 (2nd Dist. 2002). This means that in a hearing on an order of protection in the Second, Third, and Fourth districts, a court will apply Section 8-2601 with respect to hearsay statements by a child concerning abuse.

It is unclear whether the First District, which covers Cook County, requires the application of Section 8-2601 to hearings on petitions for orders of protection. In Marriage of Gilbert, 355 Ill. App.3d 104 (1st Dist. 2004) held that Section 606.5(c) applies to hearings on orders of protection when part of the relief asked for is a limitation on the other parent’s parenting time. In Trinidad v. Augustin, the First District applied Section 8-2601, but it is unclear if either party had asked the court to apply Section 606.5(c). 

Help is Available to Protect Your Child from Abuse

Illinois law provides tools that parents can use to protect their children from physical and sexual abuse by another family member. If you believe some type of abuse has occurred, there are certain steps you need to take to develop the evidence needed to obtain an order of protection or supervised visitation order. Section 8-2601 and Section 606.5(c) provide a framework for organizing the steps you need to take. For more detailed guidance on your specific situation, please consult with a local family law attorney.

Contact Our Illinois Divorce & Custody Law Firm Today

You will find our attorneys to be flexible, responsive, and ready to begin providing exceptional representation to protect your rights and your best interests immediately. Call our law office now at 312-624-7645 to schedule a consultation about your family law needs at no initial charge.


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