tender years exception in Pennsylvania

2026Tender Years Hearing, 3/21/24, at 5- ____________________________________________ 2 “The tender years exception allows for the admission of a child’s out-of-court statement due to the fragile nature of young victims of sexual abuse.” Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa. Super. 2002) (citation omitted). -2- J-S45037-25 7.

2025“The tender years exception allows for the admission of a child’s out-of-court statement due to the fragile nature of young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653, 657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super. 2002)) (internal quotation marks omitted).

2025“The tender years exception allows for the admission of a child’s out-of-court statement due to the fragile nature of young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653, 657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super. 2002)) (internal quotation marks omitted).

2021“The tender years exception - 14 - J-S43044-20 allows for the admission of a child’s out-of-court statement due to the fragile nature of young victims of sexual abuse.” Commonwealth v. Kriner, 915 A.2d 653, 657 (Pa.Super. 2007) (quoting Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super. 2002)).

2024Op. at 123. 158 327 A.2d 60, 62 (Pa. 1974) (invalidating a statutory scheme awarding alimony pendente lite and counsel fees only to wife and not husband); see also Spriggs, 368 A.2d at 639-40 (plurality) (questioning the legitimacy of the tender years doctrine as predicated upon “traditional or stereotypic roles of men and women in a marital union” and being offensive to the equality of the sexes); Adoption of Walker, 360 A.2d 603, 605 (Pa. 1976) (invalidating statutory distinction between unwed mothers and unwed fathers); Butler v. Butler, 347 A.2d 477, 480 (Pa. 1975) (invalidating a presumpt

1994Even more significant is the judicially approved doctrine of the primary caretaker which provides an alternative to any presumptions based on the standard of the best interest of the child and filling the void created by Spriggs v. Carson, 470 Pa. 290 , 368 A.2d 635 (1977), which abrogated the tender years doctrine.

2025The Tender Years exception provides for the admissibility of a hearsay statement “when it has sufficient indicia of reliability as determined from the time, content, and circumstances of its making.” Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa.Super. 2003) (citation omitted).

2025The Tender Years exception provides for the admissibility of a hearsay statement “when it has sufficient indicia of reliability as determined from the time, content, and circumstances of its making.” Commonwealth v. O'Drain, 829 A.2d 316, 320 (Pa.Super. 2003) (citation omitted).

2025“Statements admitted under this section are substantive evidence against the defendant.” Commonwealth v. Copenhaver, 316 A.3d 1020, 1023 (Pa.Super. 2024), appeal denied, 330 A.3d 1248 (Pa. 2024). “[This Court] will not reverse the trial court’s decision to admit evidence pursuant to the [T]ender [Y]ears statute absent an abuse of discretion.” Commonwealth v. -5- J-A21041-25 Curley, 910 A.2d 692, 697 (Pa.Super. 2006), appeal denied, 927 A.2d 622 (Pa. 2007).

2025“Statements admitted under this section are substantive evidence against the defendant.” Commonwealth v. Copenhaver, 316 A.3d 1020, 1023 (Pa.Super. 2024), appeal denied, 330 A.3d 1248 (Pa. 2024). “[This Court] will not reverse the trial court’s decision to admit evidence pursuant to the [T]ender [Y]ears statute absent an abuse of discretion.” Commonwealth v. -5- J-A21041-25 Curley, 910 A.2d 692, 697 (Pa.Super. 2006), appeal denied, 927 A.2d 622 (Pa. 2007).

2021At the close of the adjudicatory hearing, the juvenile court found sufficient evidence to establish that R.J.R. had committed the delinquent offenses of ____________________________________________ 2 18 Pa.C.S.A. § 3123(a)(1). 3 “The tender years exception allows for the admission of a child’s out-of-court statement because of the fragile nature of young victims of sexual abuse.” Commonwealth v. Lukowich, 875 A.2d 1169, 1172 (Pa. Super. 2005); see also 42 Pa.C.S.A. § 5985.1 (permitting admission of a child’s out-of-court statement, where the child is less than 12 years old, the statement descr

2020“The tender years exception allows for the admission of a child’s out-of-court statement because of the fragile nature of young victims of sexual abuse.” Commonwealth v. Lukowich, 875 A.2d 1169, 1172 (Pa.Super. 2005), appeal denied, 885 A.2d 41 (Pa. 2005).

2026See Commonwealth v. Copenhaver, 316 A.3d 1020, 1025-26 (Pa. Super. 2024) (finding trial court’s error in admitting videotaped statements made by victim’s sister, which were inadmissible under the tender years exception to hearsay, was harmless error).

2025“Statements admitted under this section are substantive evidence against the defendant.” Commonwealth v. Copenhaver, 316 A.3d 1020, 1023 (Pa.Super. 2024).

2007Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule." Id. (citations omitted). ¶ 7 The tender years exception is one such exception to the hearsay rule.

2007Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule.” Id. (citations omitted). ¶ 7 The tender years exception is one such exception to the hearsay rule.

2025One exception to the hearsay rule is the tender years rule. 42 Pa.C.S.A. § 5985.1; see also Commonwealth v. Wilson, 286 A.3d 1288, 1295 (Pa.Super. 2022) (noting that the tender years exception “creates an exception to the general rule against hearsay for a statement made by a child”).

2025One exception to the hearsay rule is the tender years rule. 42 Pa.C.S.A. § 5985.1; see also Commonwealth v. Wilson, 286 A.3d 1288, 1295 (Pa.Super. 2022) (noting that the tender years exception “creates an exception to the general rule against hearsay for a statement made by a child”).

2014See Hunzer, supra, 868 A.2d at 510 .

2014See Hunzer, supra, 868 A.2d at 510 .

2026He argued that the “repeated okay implies to the child that she’s giving the information that the interviewer is looking for.” Id.

2026He argued that the “repeated okay implies to the child that she’s giving the information that the interviewer is looking for.” Id.

2025See Lyons, 833 A.2d at 255 .

2016Commonwealth v. Lyons, 833 A.2d 245, 255 (Pa. Super. 2003).

2025Under the tender years exception, “a trial court must consider the totality of the circumstances when determining whether a child’s out-of-court statement is trustworthy.” Interest of D.C., 263 A.3d 326, 335 (Pa. Super. 2021).

2022See Interest of D.C., 263 A.3d at 333-34 (concluding that the trial court did not abuse its discretion in finding that child was unavailable under the tender years exception based upon testimony from Mother and two other custodians, and the court’s observations of victim).

2020In making this determination, the court may do all of the following: (1) Observe and question the child, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S. § 5985.1. - 15 - J-S37028-20 “Even though the Act does not mandate the type of evidence upon which the court must rely, it does require that some concrete evidence of serious emotional distress be presented.” Fidler v. Cunningham-Small, 871 A.2d 231, 238 (Pa. Super. 2005). “[I]n the absence of e

2020In making this determination, the court may do all of the following: (1) Observe and question the child, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S. § 5985.1. - 15 - J-S37028-20 “Even though the Act does not mandate the type of evidence upon which the court must rely, it does require that some concrete evidence of serious emotional distress be presented.” Fidler v. Cunningham-Small, 871 A.2d 231, 238 (Pa. Super. 2005). “[I]n the absence of e

2011Jordan v. Jackson, 876 A.2d 443, 452 (Pa. Super. 2005) (quoting Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa. Super. 1998)) (emphasis in original).

2008In determining best interests of the child, a court must consider all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” Jordan v. Jackson, 876 A.2d 443, 452-53 (Pa. Super. 2005).

2006Commonwealth v. Bishop, 742 A.2d 178, 184 (Pa. Super. 1999).

2002Commonwealth v. Bishop, 742 A.2d 178, 184 (Pa.Super.1999).

2007We find such an exercise would be superfluous, even if we were to assume, as appellant does, that the phrase “with or on” contained in the precursor to the current Act forecloses the possibility of applying the tender years exception to a statement from a child who was not directly acted upon by the perpetrator. ¶ 40 As discussed above, in 1980 the United States Supreme Court in Ohio v. Roberts held that the admission of hearsay testimony made by an unavailable witness against a criminal defendant is admissible under the Confrontation Clause if the statement is surrounded by an “adequate indic

2007Such indicia exist, according to Roberts, when the testimony being considered either fits within a “firmly rooted hearsay exception” or contains “particularized guarantees of trustworthiness.” Id. ¶ 41 The trial court, by applying the Act to the current controversy, was required to find A.A. was unavailable and was also required to find indicia of reliability. 23 42 *1227 Pa.C.S.A. § 5985.1.

1976Grillo v. Shuster, supra. 226 Pa.Super. at 236, 312 A.2d at 612 .

1975Grillo v. Shuster, 226 Pa. Superior Ct. 229, 235-236 , 312 A.2d 58, 62 (1973), wherein we stated: “The ‘tender years’ presumption does not reflect or derive from the mother’s ‘right’, whether that right be characterized as ‘prima facie’ or otherwise.

1975Bender v. Bender, 197 Pa. Superior Ct. 397, 401 (1962): “as children grow older less weight must be given to the tender years doctrine and more weight must be given to the preference of the child.” In the case at bar, the hearing judge found, inter alia, that: “From discussion with Todd, we find that he is more attached to, and comfortable with his father.

1973Bender v. Bender, 197 Pa. Superior Ct. 397, 401 , 178 A. 2d 779 (1962) (a case involving two children aged 9 and 11) : “[A]s children grow older, less weight must be given to the tender years doctrine and more weight must be given to the preference of the children.” At the time of the custody hearing in the instant case, the two boys involved, Michael and James, were 13 and 12 years old respectively. 2 While they might still be classified as of tender years, they have reached the upper limits of that classification. 3 The trial judge below found both boys capable of making an intelligent choic

1984Thus, the trial court's award will be reversed where based on the tender years presumption, Haraschak v. Haraschak, 268 Pa.Super. 173 , 407 A.2d 886 (1979), or on the application of an improper burden of proof, Ellerbe v. Hooks, supra ; In Re Custody of Hernandez, 249 Pa.Super. 274 , 376 A.2d 648 (1977).

1984Thus, the trial court's award will be reversed where based on the tender years presumption, Haraschak v. Haraschak, 268 Pa.Super. 173 , 407 A.2d 886 (1979), or on the application of an improper burden of proof, Ellerbe v. Hooks, supra ; In Re Custody of Hernandez, 249 Pa.Super. 274 , 376 A.2d 648 (1977).

1987See Myers, supra at note 2, at 215-216, 228-229; Note, The Testimony of Child Victims in Sexual Abuse Prosecutions, 96 Harv.L.Rev. 806, 821-22 & nn. 96-107. [8] Although Pennsylvania almost statutorily adopted the tender years exception in 1984 ( see Commonwealth v. Haber, supra, 351 Pa.Superior Ct. at 91, 94, 505 A.2d at 280-281 ), the legislature has since adopted a different and in many respects more comprehensive approach to the problem.

1987Although Pennsylvania almost statutorily adopted the tender years exception in 1984 (see Commonwealth v. Haber, supra, 351 Pa.Superior Ct. at 91, 94, 505 A.2d at 280-281 ), the legislature has since adopted a different and in many respects more comprehensive approach to the problem.