Custody-PowerPoint-7-30-13 - The Louisiana Judicial College

Report
Cardashian’s In Court
August 9, 2013
LISA PRATER-BAILEY
LORRAINE A. MCCORMICK
PRATER BAILEY & ASSOCIATES, LLC
MCCORMICK & MCCORMICK
WWW.PRATERBAILEY.COM
WWW.MCCORMICK900.COM
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
Fact scenario:

Cal and Kim have been married for 10 years and are in their mid
thirties, with two children. One daughter: Courtney (12 years old),
and one son: Ken (3 years old). The daughter attends a private
school, and their son attends a Mother’s Day Out program 3 days a
week. The couple has been separated for 6 weeks.

The trial judge set an interim custody arrangement (50-50) with the
parties alternating custody every Sunday. The court set the matter
for a two day custody trial to determine permanent custody,
domiciliary status, and support.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
I.
1.
Experts:
Parenting Coordinator: A Parenting Coordinator was appointed by the trial
judge to help the parents learn to co-parent while living apart. The Parenting
Coordinator has been working with both parents for the past 4 weeks. The
Parenting Coordinator has been sending periodic reports to the trial Judge and
attorneys.
Trial Testimony (Parenting Coordinator)
The Parenting Coordinator’s written report to the judge states that the father is
uncooperative. The Parenting Coordinator told both attorneys (off the record) that
she believes the mother has border-line personality disorder and is as crazy as a jay
bird, but did not include this in her written report to the trial Judge.
Dad listed to the Parenting Coordinator as a witness on his witness list and issued a
subpoena for trial. Counsel for Mom filed a Motion in Limine for the Judge to
determine whether the Parenting Coordinator can testify at trial with her records.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“Good morning your Honor. I represent Kim in this
contested custody trial. We filed a Motion in Limine to
prohibit the Parenting Coordinator from testifying at trial
and producing the record in accordance with Louisiana
Revised Statute: 9:358.5 (A) which states: “The parenting
coordinator shall not be called as a witness in a child
custody proceeding without prior court approval.” The
Parenting Coordinator’s reports should speak for
themselves.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Good morning Your Honor. I represent Cal in this matter.
We object to the admission of the Parenting Coordinator’s
reports because they are hearsay (Code of Evidence
Article 801) as they are offered for the truth of the matter
asserted.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“As you know Your Honor, evidence rules are relaxed in
custody cases, and you have the authority to admit
hearsay under Code of Evidence Article 1101 (B)(2).”
6
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“However Your Honor, there is a conflict in the law. Louisiana
Revised Statute 9:358.5 (B) requires the Parenting Coordinator to
distribute all reports to the court and the attorneys. But, this
statute conflicts with Louisiana R.S. 9:358.6 which state that the
Parenting Coordinator shall not communicate ex parte with the
court, except in an emergency situation. There are other issues
relevant in this case that were not included in the written report.
Judge, if you read the reports, then we should have a
constitutional right to cross examine the Parenting Coordinator.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“The parties’ statements to the Parenting Coordinator are
confidential. Therefore, the Parenting Coordinator should
not be forced to testify.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“That is incorrect. The statements made to the Parenting
Coordinator are not confidential. Opposing counseling is
confused with the mediation statute (La. R.S. 9:332(C))
which protects confidential statements. The statements
made by Mom to the Parenting Coordinator are admissible
as an admission of a party under Code of Evidence Article
801(D)(2). This is the reason we must have the right to cross
examine the Parenting Coordinator.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Judge:
“I have not read any of these reports. As a judge, I never read
any reports submitted on a case until they are offered at trial. I
do believe there is a conflict in the law. In most cases, I do not
allow the Parenting Coordinator to testify at trial because it
would have a chilling effect on their role which is to be
objective. So I am not going to allow the reports to be admitted
into evidence, or allow the Parenting Coordinator to testify.
[Carollo v. Carollo, --- So.3d ----, 2013 WL 2370520, La.App. 1
Cir.,2013, May 31, 2013). Schneider v. Schneider --- So.3d ----,
2013 WL 3064647, La.App. 3 Cir.,2013, June 20, 2013, Garcia v.
Garcia 49 So.3d 601 La.App. 3 Cir.,2010. November 03, 2010)]”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
2.
Court appointed Custody Evaluator: Cal alleged that Kim is an
alcoholic and pops diet pills like candy because she has an eating
disorder. The trial Judge appointed a psychologist to perform a
custody evaluation. At the conclusion of this evaluation, the
custody evaluator recommended that Dad be designated as the
domiciliary parent with Mom having the two minor children every
other weekend, alternating holidays and half the summer. The
psychologist based his recommendation on a diagnosed mental
health disorder of borderline personality disorder. The Court
appointed custody evaluator submitted his written report to the
trial Judge and attorneys.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Your Honor, we offer and introduce into evidence the
written report of the court appointed custody evaluator.”

Counsel for Mother:
Objection. Hearsay.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Father:
“Dr. Phil was appointed by this court as the court
appointed expert. Under Code Evidence Article 706 (A), it
is assumed that the written report of the court appointed
expert should be admitted. Dr. Phil was not subpoenaed
for trial. If Mom wanted him here, she should have either
taken his deposition, or issued a trial subpoena.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“The report is hearsay; therefore Dr. Phil has to testify to get
the report into evidence.”
Furthermore Your Honor, even if you did let the report in,
the trial court is not required to give an extra weight to the
testimony of experts. Givens v. Givens, 2010–0680 (La.App.
1st Cir.12/22/10), 53 So.3d 720, 729. Molony v. Harris, 60
So.3d 70, La.App. 4 Cir.,2011, February 23, 2011. In re M.S.E
(Minor Child), No. 12-CA-553, March 13, 2013.
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Judge:
“A written report is inadmissible as hearsay, unless there is a
mutual stipulation to submit the report in evidence. The
question is whether the same rule applies to a written
report of a Court appointed expert. This was the question
raised, but not decided in Dufhilo v. D’Aquin, 615 So. 2d
522, La. Ct. App. 3d 1993).” (Discussion: How would you
decide???)
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
3.
Mental Health Professional - “The Hired Gun”
Mom was furious with this report. Her attorney hired a third
party mental health professional to perform a second
custody evaluation. At the conclusion of this evaluation,
the “Hired Gun” recommended that the mother be
designated as the domiciliary parent with father having the
two minor children every other weekend, alternating
holidays and half the summer.
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“Cardashian’s In Court”
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
Counsel for Mom:
“I would like to call Hired Gun as my next witness. Hired
Gun, please state your name and address and tell us your
education level.”

Hired Gun:
“I have a bachelor’s degree in social work. I am also a
licensed practical counselor.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“What is your work experience?”

Hired Gun:
“I have been a counselor for 17 years, specializing in family
counseling and child development.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“Have you ever testified in
court before?”

Hired Gun:
“Yes.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“Have you ever been qualified
as an expert? And if so, in what
field?”

Hired Gun:
“Yes. In the field of family counseling and child development.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Mom:
“I would like to offer Hired Gun
as an expert in the field of family
counseling and child development.”

Counsel for Dad:
“I object to her being qualified as an expert, and I request a
Daubert/Foret Examination of the Witness.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Judge:
“Excuse me, you want do what
to the witness?”

Counsel for Dad:
“Under Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct.
2786, and State v. Foret, 628 So.2d 1116 (La. 1993), counsel is allowed
to test the witness’ qualifications, before the trial Judge accepts him as
an expert. Basically, the rule is that the expert can testify only to that
which is within the field in which he is specifically qualified.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Judge:
“Well how in the heck do you do this?”

Counsel for Dad:
“Judge, the issue for you to determine is the validity and
reliability of the Social Worker’s opinion as to the ultimate issue of
custody and the process that she used to arrive at that
opinion. We do not believe that a Social Worker’s opinion is
scientifically valid.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Judge:
“Okay, I guess I have to let
you proceed.”

Counsel for Dad:
“Hired Gun, please tell the court what scientific principles, data,
or research or any other evidence accepted by the scientific
community that you used as a basis for your opinion.’
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Hired Gun:
“What do you mean? I have
been doing this for 17 years?
My experience.”

Counsel for Dad:
“Have you published anything in your field of expertise that has
been subject to peer review?”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Hired Gun:
“No.”

Counsel for Dad:
“Do you know the potential for error?”

Hired Gun:
“I don’t make errors.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Are you aware of the existence of
standards controlling the technique's
operation, the technique's testability?”

Hired Gun:
“I’m not the one being tested.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Did you incorporate the jurisprudential rule of
general acceptance in the scientific community?”

Hired Gun:
“It’s not my job to know the law.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for dad:
“Did you administer any psychological testing?”

Hired Gun:
“Yes. I performed the MMPI.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Do you have proper credential to purchase,
administer, evaluate and use psychological tests?”

Hired Gun:
“Well sure. I got a copy from the internet. Anyone can give the test.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Are you aware that administering
such a test as a Social Worker is in
violation of La. R.S. 37:2703 ad
2352?”

Hired Gun:
“No.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Did you also administer a
personality profile test?”

Hired Gun:
“Yes.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Did you use this as a basis for
your ultimate opinion?”

Hired Gun:
“Yes.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Do you realize that the personality profile tests
are not real “indicators of anything and are not
generally
accepted
by
the
scientific
community as valid or reliable psychological
test according to experts in the field?”

Hired Gun:
“Well, I just wanted to get a feel for the clients. I
did not put anything about their personalities in
my report. I just call it like I see it from all my
years of experience.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Did you meet with all parties in this case?

Hired Gun:
“Well, I was hired by Mom, and Dad refused to visit me.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Is this the reason you stated that
Dad was unwilling to communicate
with Mom, which was a basis for
your opinion?”

Hired Gun:
“Yes.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“But you never met with Dad, correct?”

Hired Gun:
“Because he refused to meet with me.
But I got all his relevant information from
Mom and the kids.”
37
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Are you aware of the Model Standard of
Practice for Child Custody Evaluations adopted
by the American Psychological Association and
the Association of Family and Conciliation
Courts which govern Social Workers?”

Hired Gun:
“I am licensed.”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Your Honor, I request that this Honorable Court reject Dr. Phil as an expert in this
case. She violated the standard of practice for Social Workers. The Social Worker’s
testimony should be limited in scope to that of a lay witness and should not be
afforded the great weight of expert testimony.”

Counsel for Mom:
“Your honor, you have broad discretion under Code of Evidence Article 702 in
allowing expert testimony to assist you as the trier of fact. In Stewart v. Stewart, the
trial Court allowed a licensed professional counselor to testify where he was a
licensed marriage and family therapist and had testified as an expert in marriage
and family therapy, earned a master's degree in counseling, and had additional
training as qualified divorce mediation. (86 So.3d 148 La.App. 3 Cir.,2012. March 07,
2012)”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“That is a case from the 3rd Circuit and we are in
the 1st Circuit. Therefore the case is not controlling.”

Judge:
“Stop yelling at each other. I am going to allow Hired Gun to testify. I feel
the probative value of his testimony outweighs the prejudice and may
assist me in determining the best interest of the children. I will let it go to the
weight of the evidence. I have broad discretion. Orrill v. Orrill, 5 So.3d 279,
La.App. 4 Cir.,2009. February 04, 2009.”
40
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
Child Witness
Dad issued a subpoena (Writ of
Habeas Corpus) for the 12 year old to
testify at the trial. Courtney is in the
Court room, nervous and clinging to
Mom.
41
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for dad:
“Your Honor, I would like to
call Courtney to the stand to testify.”

Counsel for Mom:
“Objection. Courtney is a minor child and not competent
to testify under Code of Evidence Article 601.”
42
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Counsel for Dad:
“Courtney is very mature for her age, and the
preference of the child is a relevant factor to
consider under Louisiana Civil Code Article 134.
All relevant evidence is admissible under Code of Evidence 402.”

Counsel for Mom:
“Under Folse v. Folse, 97-0952 (La.App. 1 Cir. 5/15/98), 714 So.2d 224, the Louisiana
Supreme Court confirmed the trial Court’s decision to prohibit a minor child from
testifying because it would cause harm to the child. 738 2d. 1040 (La. 6/29/99).”
43
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
Counsel for Dad:
“Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.) set the
standard for the use of testimony of children in custody cases to
determine the child’s competency to testify at trial. That case stated
that when a trial judge holds an in camera interrogation of a child, it
should be conducted outside the presence of the parents, but in the
presence of the attorneys and a court reporter who shall record the
child's testimony, and that the attending attorneys may question only
the child's competency. Other circuits have adopted this procedure.
Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.), writ denied,
464 So.2d 301 (La.1985)”
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“Cardashian’s In Court”
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
Judge:
“I don’t like children to testify in court. I think children have enough stress
and it causes harm to force them to pick one parent over another. I
have great discretion as the trier of fact, and you better give me a very
good reason why I need to hear from the children. I am not going to
drag Courtney into this Court room because you two parents cannot
agree on what is best for your children. Bowden versus Brown, 2013
WL1983419, La. App.2 Cir. ( 48,268 (La. App. 2 Cir. 5/15/2013)
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases
Tangible evidence
1.

Text Messages
Counsel for Cal – Calls Cal to the Stand:
“Your wife has alleged that you were having an affair with a woman
named Barbie during the marriage because she allegedly read some
text messages. Were you having an affair?”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Cal:
“I never had sexual relations with that
woman. I never even texted “Barbie” and
my phone records will show that there are
no texts or calls to Barbie’s number.”

Counsel for Kim – Calls Kim to the Stand:
“How do you know the texts were between
your husband and Barbie?”
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“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

Kim:
“I have his actual phone showing the texts, but he has an “App” that
falsifies the number so it shows that the call is from a different number and
to another number. However, you can see the text messages right here
(Kim holds up the iphone to the judge)”

Counsel for Kim:
“Your Honor, there are many ways to send anonymous text messages and
phone calls. It is called “Spoofing” and it prevents the account holder
from seeing who they are talking to or texting. I would like to offer, file,
and introduce into evidence the actual iphone showing these text
messages.”
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
Counsel for Cal:
 “Objection
–
 Not
admissible under La. Code of Evidence Article 401 as it is
an invasion of privacy.
 Lack
of authenticity – No foundation laid to prove it is Cal’s
phone.”
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
Counsel for Kim:
 Not
invasion of privacy because the phone is a
community property asset under a joint phone
plan.
 Kim
has personal knowledge that this was the
phone under the plan that Cal always used.
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
Judge:
“Overruled. The cell phone shall be admitted and I will let it
go to weight of the evidence and will determine the
credibility of the testimony and evidence. You can make
copies of the text messages and supplement the record at
the break.”
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2.
Texts / Emails/ Social Networking
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
Counsel for Cal – Calls Cal to the Stand:
“Cal, why are you concerned for
your children’s safety when they
are with their mother?”

Cal:
“My wife is a drunken floozy. She is dancing on
bar tops and doing body shots with strange men
while my 12 year old daughter is left to baby set
my 3 year old son.”
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
Counsel for Cal:
“How do you know all of this?”

Cal:
“It’s not hard – it’s all over Facebook! Look at all of these
photos posted on her friends Facebook pages just from last
weekend when she had the kids. (Cal tries to show the
Facebook pages to the Judge.)”
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
Counsel for Cal:
“Your Honor, I would like to offer, file and introduce into evidence copies of the
Facebook pages identified by Cal.”

Counsel for Kim:

“Objection - Hearsay
Foundation
and Lack of Authenticity / Failure to Lay a

These are not posts on my client’s Facebook page – but from a 3rd
party. These photos could have been from years ago and may have
been photo-shopped. They have no way of authenticating these
photos without the photographer present.
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
Counsel for Cal:
As you know Your Honor, evidence rules
are relaxed in custody cases, and you
have the authority to admit hearsay under
Code of Evidence Article 1101 (B)(2).
Furthermore, Kim is here for Cal’s attorney
to cross-examine – so these Facebook
posts and photos are not hearsay.
This information is relevant to the custody
proceeding and will asset the Court in
determining the best interest of the
children.
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
Judge:
“I am going to let you try to lay a
foundation to authenticate these
Facebook posts and photos. They
may be authenticated through
direct or circumstantial evidence.

Counsel for Cal:
Kim, are these your Facebook
friends? Is this you in these photos?
Were you at the Florababma last
weekend?
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
Emails

Counsel for Kim – Calls Kim to the Stand:
“You have alleged that Cal has been harassing you, correct?”

Kim:
“Yes, he sent me this email calling me a “Skanky Ho.”
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
Counsel for Kim:
“I would like to offer, file, and introduce into evidence this email from Cal to
Kim calling her a ‘Skanky Ho.”

Counsel for Cal:
Objection –
Authenticity – there is no proof that this email was sent by my client,
Cal. In fact, Cal will testify that it was actually his 12 year old daughter
that sent the email after she saw the Facebook posts of her mom on
her friends Instagram.
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
Judge:
“Overruled. The emails shall be
admitted. I will let this go to
weight of the evidence, not the
admissibility. “The defendant’s
testimony that others used his
computer regularly and that he
did not author the emails was
relevant to the weight, not the
admissibility, of these messages.
Commonwealth v. Purdy, 945
N.E.2d 372 (Mass. 2011)
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
Mediation
LSA-R.S. 9:332
§
332. Custody or visitation proceeding; mediation
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A.
The court may order the parties to mediate their
differences in a custody or visitation proceeding.
The mediator may be agreed upon by the
parties or, upon their failure to agree, selected
by the court. The court may stay any further
determination of custody or visitation for a
period not to exceed thirty days from the date
of issuance of such an order. The court may
order the costs of mediation to be paid in
advance by either party or both parties jointly.
The court may apportion the costs of the
mediation between the parties if agreement is
reached on custody or visitation. If mediation
concludes without agreement between the
parties, the costs of mediation shall be taxed as
costs of court. The costs of mediation shall be
subject to approval by the court.
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B.
If an agreement is reached by the parties, the mediator
shall prepare a written, signed, and dated agreement.
A consent judgment incorporating the agreement shall
be submitted to the court for its approval.
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C.
Evidence of conduct or statements made in mediation is not
admissible in any proceeding. This rule does not require the
exclusion of any evidence otherwise discoverable merely
because it is presented in the course of mediation. Facts
disclosed, other than conduct or statements made in mediation,
are not inadmissible by virtue of first having been disclosed in
mediation.
64
“Cardashian’s In Court”
Common Evidentiary Disputes During Contested Custody Cases

LSA-R.S. 9:4111

4111. Written settlement agreements
A.
If, as a result of mediation, the parties agree to settle and
execute a written agreement disposing of the dispute, the
agreement is enforceable as any other transaction or
compromise and is governed by the provisions of Title XVII of
Book III of the Civil Code, to the extent not in conflict with the
provisions of this Chapter.
B.
The court in its discretion may incorporate the terms of the
agreement in the court's final decree disposing of the case.
65
Custody Trials
66
Tangible
Evidence
Objection
Argument
Text Messages
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Opposing Attorney
Response
Declarant available to
testify?
Relaxed rules of
evidence in custody
cases:
CE: 1101 (B)(2)
Emails
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Case Law
In custody cases, the rules of
evidence relaxed: CE:
1101(B)(2).
Admit. Weight of evidence.
Verify authorship versus
ownership. Authenticate.
Watch spoofing.
Hearsay Exception:
Business Records: 803
(6)
In custody cases, the rules of
evidence relaxed: CE:
1101(B)(2).
CE:1101 (B)(2)
Admit. Weight of evidence.
Verify authorship versus
ownership. Authenticate.
Watch spoofing.
Custody Trials
Tangible
Evidence
67
Objection
Argument
Facebook,
Twitter,
Youtube,
Instagram,
social media
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems
Credit cards
Hearsay
Opposing Attorney
Response
Hearsay Exception:
Public Records: 803 (8)
Case Law
Court may allow circumstantial
evidence to authenticate.
CE:1101 (B)(2)
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems.
Custodian of records.
Hearsay Exception:
Business Records: 803
(6)
CE:1101 (B)(2)
Note:
CC 1101 (B)(2) not relaxed on
financial issues.
Custody Trials
68
Tangible
Evidence
Objection
Argument
Opposing Attorney
Response
Photographs
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems
Witness present to testify. Court may allow photographs if
Authenticate with
relevant, foundation laid, and
witness.
authenticated.
Audio
recordings
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems
Witness present to testify. Court may allow photographs if
Authenticate with
relevant, foundation laid, and
witness.
authenticated.
Case Law
Custody Trials
Tangible
Evidence
Objection
Police reports
Hearsay
Bias
69
Argument
Hearsay
Opposing Attorney
Response
Exception to Hearsay:
CE:803(8)
Exclusion from exception to hearsay
Case Law
Have custodian available to
testify.
Question witness about incident.
CE: 1101 (B)(2
Investigative
reports
Hearsay
Not exception
to hearsay
Exclusion to Exception to Hearsay:
CE:803(8)b( i)
Exception to Hearsay:
CE:803(8
CE: 1101 (B)(2)
Investigative reports
inadmissible. Bandy versus
Bandy, 971 So. 2d 456, La. App.
3 Circ. 2007
Custody Trials
Tangible
Evidence
Newspaper
photo
70
Objection
Argument
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems. Is it
relevant?
Irrelevant?
Opposing Attorney
Response
Hearsay Exception:
Public Records: 803 (8)
CE:1101 (B)(2)
Case Law
Not hearsay if witness testifies at
trial & available for cross
examination
State vs. Castro. 40 So. 2d 1036
(La. App. 5 Circ. 2010)
902 (6)
Arrest for DUI
Hearsay
Evidence of
crimes wrongs
acts:
404 B
Arrest Records are not admissible pursuant to CE 404 Evidence of crimes,
B as they are evidence of crimes, wrongs, or acts to
wrongs or acts may be
prove character of the person.
admissible if for other
purposes than attacking
the character of the
person.
CE 1101 (B)(2) allows all
in for the judge’s
decision.
Evidence of arrest may be
admitted if it has relevance
independent of the suggestion
that witness is unworthy of belief.
Used to show he used alcohol
and RX drugs and issue was
relevant to custody. Admitted
Fernandez vs. Pizzalata.902 2d.
1112, La. App. 4 Cir. 2005
Custody Trials
71
Tangible
Evidence
Objection
School records
Hearsay
Custodian not available to testify.
Exception to Hearsay,
Public Records Exception
Code of Evidence
803(8)
Admissible under traditional
public documents exception to
hearsay State versus Dewhirst,
527, So. 2d 475 La. App. 5 Cir.
1988
School
performance
ratings
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Public records exception
803 (8)
If relevant, admissible under
traditional public documents
exception to hearsay.
Argument
Argue bias? Prejudice?
Opposing Attorney
Response
Case Law
Custody Trials
Tangible
Evidence
Daycare
records
72
Objection
Argument
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Opposing Attorney
Response
Exception to Hearsay:
Business records
exception
803(6)
Case Law
In custody cases, the rules of
evidence relaxed: CE:
1101(B)(2).
Admit. Weight of evidence.
Medical
records
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Business records
Exception to Hearsay. La. RS.
exception
13:3714
803(6). Exceptions to
Hearsay. La. RS. 13:3714
Custody Trials
Tangible
Evidence
73
Opposing Attorney
Response
Objection
Argument
Case Law
Pediatrician
Records
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Business records
exception
Exception to Hearsay.
803(6) and
La. RS. 13:3714
Exception to Hearsay. La. RS.
13:3714
Mental Health
records
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Authentication problems?
Business records
Exception to Hearsay.
803(6) and
La. 40:1299.39
La. 40:1299.39 Received into
evidence as prima facie proof of
its contents.
Custody Trials
74
Tangible
Evidence
Objection
Argument
Opposing Attorney
Response
Drug test
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Chain of custody problems?
Authentication problems?
Business records
exception to hearsay.
CC 803 (6).
Make sure it is a reliable lab to
verify the chain of custody .
La. RS. 9:331.1 trumps business
exception and need to be
comfortable with lab.
Paternity
DNA test
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present? Chain of custody
problems?Authentication problems?
La. R.S. 9:397.2; 9:397.3
Business records
exception to hearsay.
CC 803 (6).
La. R.S. 9:397.2; 9:397.3
For DNA test to be admissible for
testing, the chain of custody of
blood samples in paternity
actions govern over business
records exception.
Case Law
Richardson versus Richardson,
974 So. 2d 761, La. App. 4 Cir..
2007
Custody Trials
Tangible
Evidence
75
Opposing Attorney
Response
Objection
Argument
Case Law
Birth
certificates
Hearsay
Out of court statement to prove the truth of the matter.
Declarant not present?
Exception to hearsay
803(9)
Employment
Labor Reports
Hearsay
Rules are not relaxed in child support cases
Exception to Hearsay. La. Exception to Hearsay. La. R.S.
R.S. 13:3712
13:3712
Labor reports are admissible and
received as prima face proof of
child support cases. Selfauthenticating.
Admit
Custody Trials
76
Tangible
Evidence
Objection
Argument
Opposing Attorney
Response
Tax returns
Hearsay
Out of court statement to prove the truth of the matter.
Unsigned? Tax preparer not present?
Business records
exception to hearsay.
CC 803 (6).
If unsigned; authenticate
with witness.
In custody cases, the rules of
evidence relaxed: CE:
1101(B)(2).
Bank records
Hearsay
Out of court statement to prove the truth of the matter.
Exception to Hearsay
Business records
exception
803(6).
In custody cases, the rules of
evidence relaxed: CE:
1101(B)(2).
Case Law
Custody Trials
Tangible
Evidence
Objection
Map Quest
Hearsay
77
Argument
Out of court statement to prove the truth of the matter.
Relevance?
Custody
Evaluation
Reports
Hearsay
Out of court statement to prove the truth of the matter. Is
declarant available?
Opposing Attorney
Response
Case Law
Exception to Hearsay
Public records exception
803(8)
In custody cases, the rules of evidence
relaxed: CE: 1101(B)(2).
Exception to Hearsay
Business records exception
803(6).
Declarant to testify or not if court
appointed?
Custody Trials
Tangible
Evidence
78
Opposing Attorney
Response
Objection
Argument
Case Law
Hospital
records
Hearsay
Out of court statement to prove the truth of the matter.
Is declarant available?
Exception to Hearsay
Business records
exception
803(6).
La. R.S. 13:3714
911 tapes
Hearsay
Out of court statement to prove the truth of the matter.
Is declarant available?
Exception to Hearsay
Business records
exception
803(6).
La. R.S. 13:3713.1
Custody Trials
Tangible
Evidence
Objection
79
Argument
Opposing Attorney
Response
Case Law
Parenting
Coordinator
Reports
Hearsay
Report and the declarant not testifying?
La.R.S. 9:358.5 (B)
requires PC to distribute
reports to the court.
Conflict in law:
Carollo v. Carollo, --- So.3d ----,
2013 WL 2370520, La.App. 1
Cir.,2013, May 31, 2013).
Schneider v. Schneider --- So.3d ---, 2013 WL 3064647, La.App. 3
Cir.,2013, June 20, 2013, Garcia v.
Garcia 49 So.3d 601 La.App. 3
Cir.,2010. November 03, 2010)]
OCS
Investigator
Reports
Hearsay
Investigative reports are excluded from hearsay
exceptions in accordance with
803(8)(b)(iv).
Exception to hearsay
rule: Public reports.
Greene v. Taylor, 809 2d 1187, La.
App. 3 Circ. 2003
803 (8)(B)(iv) makes a distinction
between factual findings resulting
from a general investigation.
Custody Trials
Tangible
Evidence
Criminal
Convictions
80
Argument
Hearsay
Out of court statement to prove the truth of the matter.
Judgment of previous
conviction may be
Exception to hearsay if
more than 6 months:
803(22).
Judgment of previous conviction
may be exception to hearsay if
more than 6 months: 803(22)
Evidence of conduct or statements made in mediation
is not admissible in any proceeding. 9:332.
Agreement reached in
mediation shall be
submitted to court
9:332.
La. R.S.9:332: Agreement
reached in mediation shall be
submitted to court.
Bias
Mediation
agreement
Opposing Attorney
Response
Objection
Hearsay
Case Law
Custody Trials
Tangible
Evidence
Settlement
Agreements
Objection
81
Argument
Opposing Attorney
Response
Case Law
82

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