THE OKLAHOMA BAR JOURNAL 14 | AUGUST 2026 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The statute addresses hearsay statements by children, incapacitated persons or vulnerable adults used in criminal prosecution proceedings.63 As originally written, it was successfully challenged (see Foote v. State)64 based upon violation of the Sixth Amendment Confrontation Clause and its application formulated in Crawford v. Washington.65 The Oklahoma Legislature, upon recommendation of the Court of Criminal Appeals in Foote, amended the statute later in 2023 to comply with the confrontation clause and avoid future reversals. Now, outside of juvenile deprived proceedings and pre- and post-trial criminal and juvenile delinquent proceedings, statements made by a child not yet 16 years of age can only be admitted if that child, incapacitated person or vulnerable adult testifies at trial. If the witness does not testify at trial, they must be unavailable and the requirements for admissibility met pursuant to 12 O.S. §2804(B). Otherwise, the statement can only be admitted if it is nontestimonial.66 28 O.S. Section 2803.3 provides no such protections, leaving wide open the door for constitutional challenges. The statute would be similarly well served by implementation of similar conditions for admissibility, putting all parties in a case on notice about the standards by which these statements may be admitted. Said conditions would narrow the statute and provide protections which protect due process rights of litigants while still serving the purposes for which it was authored. CONCLUSION One significant effect of 12 O.S. §2803.3 to domestic matters is that, as it is currently written, statements made by adults or children in the course of domestic violence proceedings will also be admissible without evidentiary safeguards otherwise available. It is likely, if not inevitable, that the number of Oklahoma appeals will increase as a result. Practitioners should consider whether to challenge the admission of this evidence when it appears and should also be careful not to leave their own evidence open to easy challenge. ABOUT THE AUTHORS Monica A. Dionisio is a partner at Dionisio Sherwood. She represents clients in all areas of family law and is a fellow in the American Academy of Matrimonial Lawyers. Jessica Tueller is an associate professor of law at the OU College of Law. Professor Tueller writes and teaches in the areas of family law; contracts; gender; sexuality and the law; and international law. ENDNOTES 1. Okla. Stat. Ann. tit. 12, §2803.3. 2. Okla. Stat. Ann. tit. 12, §2803.3. 3. Virginia D. Henson, Margaret A. East and Mahak H. Merchant, “Admissible at What Cost? Senate Bill 607 and Its Constitutional Concerns,” 97 Oklahoma Bar Journal, 22 (2026). 4. Id. at 24. 5. Id. at 26. 6. S.B. 1670, 60th Leg. §§1-2 (Okla. 2026). 7. H.B. 3434, 60th Leg. §2 (Okla. 2026). 8. Linda D. Elrod, “Hearsay and Custody: The Twice Told Story,” 21 Family Law Quarterly, 169, 169 (1987). 9. Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes, 2 (2008). 10. Steven N. Peskind, “Evidentiary Opportunities: Applicability of the Hearsay Rules in Child Custody Proceedings,” 25 Journal of the American Academy of Matrimonial Lawyers, 375, 375, 388–95 (2013). 11. Steven N. Peskind, “Evidentiary Opportunities: Applicability of the Hearsay Rules in Child Custody Proceedings,” 25 Journal of the American Academy of Matrimonial Lawyers, 375, 395–97 (2013); Linda D. Elrod, Hearsay and Custody: The Twice Told Story, Family Law Quarterly. 169, 185 (1987); see also Timothy M. Tippins and Lauren K. DeLuca, “The Custody Evaluator Meets Hearsay: A Star-Crossed Romance,” 30 Journal of the American Academy of Matrimonial Lawyers 521 (2018); Resa M. Gilats, “Out-of-Court Statements in Guardian Ad Litem Written Reports and Oral Testimony,” 33 William Mitchell Law Review, 911 (2007); Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes, 2 (2008). 12. Okla. Stat. Ann. tit. 43, §113(E). 13. Okla. Stat. Ann. tit. 12, §2804. 14. Okla. Stat. Ann. tit. 43, §113. 15. 2008 OK CIV APP 63, 190 P.3d 1177. 16. Id. at ¶4. 17. Id. at ¶8. 18. Id. at ¶12. 19. 2010 OK 29, 237 P.3d 145. 20. Id. at ¶12. Practitioners should consider whether to challenge the admission of this evidence when it appears and should also be careful not to leave their own evidence open to easy challenge.
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