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Cardashian’s In Court August 9, 2013 LISA PRATER-BAILEY PRATER BAILEY & ASSOCIATES, LLC WWW.PRATERBAILEY.COM LORRAINE A. MCCORMICK MCCORMICK & MCCORMICK.

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Presentation on theme: "Cardashian’s In Court August 9, 2013 LISA PRATER-BAILEY PRATER BAILEY & ASSOCIATES, LLC WWW.PRATERBAILEY.COM LORRAINE A. MCCORMICK MCCORMICK & MCCORMICK."— Presentation transcript:

1 Cardashian’s In Court August 9, 2013 LISA PRATER-BAILEY PRATER BAILEY & ASSOCIATES, LLC LORRAINE A. MCCORMICK MCCORMICK & MCCORMICK

2 “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. 2

3 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases I. Experts: 1. 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. 3

4 “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. 4

5 “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.” 5

6 “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

7 “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.” 7

8 “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.” 8

9 “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.” 9

10 “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 , La.App. 1 Cir.,2013, May 31, 2013). Schneider v. Schneider --- So.3d ----, 2013 WL , La.App. 3 Cir.,2013, June 20, 2013, Garcia v. Garcia 49 So.3d 601 La.App. 3 Cir.,2010. November 03, 2010)]” 10

11 “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. 11

12 “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. 12

13 “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.” 13

14 “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, In re M.S.E (Minor Child), No. 12-CA-553, March 13, 2013.Givens v. Givens, 2010–0680 (La.App. 1st Cir.12/22/10), 53 So.3d 720,

15 “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???) 15

16 “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. 16

17 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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.” 17

18 “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.” 18

19 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  Counsel for Mom: “Have you ever testified in court before?”  Hired Gun: “Yes.” 19

20 “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.” 20

21 “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.” 21

22 “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.” 22

23 “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.” 23

24 “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.’ 24

25 “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?” 25

26 “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.” 26

27 “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.” 27

28 “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.” 28

29 “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.” 29

30 “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.” 30

31 “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.” 31

32 “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.” 32

33 “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.” 33

34 “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.” 34

35 “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.” 35

36 “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.” 36

37 “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

38 “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.” 38

39 “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)” 39

40 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  Counsel for Dad: “That is a case from the 3 rd Circuit and we are in the 1 st 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. O rrill v. Orrill, 5 So.3d 279, La.App. 4 Cir.,2009. February 04, 2009.” 40

41 “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

42 “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

43 “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, (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 d (La. 6/29/99).” 43

44 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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)”Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.) Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.) 464 So.2d 301 (La.1985) 44

45 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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 WL , La. App.2 Cir. ( 48,268 (La. App. 2 Cir. 5/15/2013) 45

46 “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?” 46

47 “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?” 47

48 “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.” 48

49 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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.” 49

50 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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. 50

51 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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.” 51

52 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases 2. Texts / s/ Social Networking 52

53 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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.” 53

54 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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.)” 54

55 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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 and Lack of Authenticity / Failure to Lay a Foundation  These are not posts on my client’s Facebook page – but from a 3 rd 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. 55

56 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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. 56

57 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  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? 57

58 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  s  Counsel for Kim – Calls Kim to the Stand: “You have alleged that Cal has been harassing you, correct?”  Kim: “Yes, he sent me this calling me a “Skanky Ho.” 58

59 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  Counsel for Kim: “I would like to offer, file, and introduce into evidence this from Cal to Kim calling her a ‘Skanky Ho.”  Counsel for Cal: Objection – Authenticity – there is no proof that this was sent by my client, Cal. In fact, Cal will testify that it was actually his 12 year old daughter that sent the after she saw the Facebook posts of her mom on her friends Instagram. 59

60 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  Judge: “Overruled. The s 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 s was relevant to the weight, not the admissibility, of these messages. Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011) 60

61 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  Mediation LSA-R.S. 9:332  § 332. Custody or visitation proceeding; mediation 61

62 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases 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. 62

63 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases 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. 63

64 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases 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

65 “Cardashian’s In Court” Common Evidentiary Disputes During Contested Custody Cases  LSA-R.S. 9:4111  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

66 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Text Messages Hearsay Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems? Declarant available to testify? Relaxed rules of evidence in custody cases: CE: 1101 (B)(2) In custody cases, the rules of evidence relaxed: CE: 1101(B)(2). Admit. Weight of evidence. Verify authorship versus ownership. Authenticate. Watch spoofing. sHearsay Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems? Hearsay Exception: Business Records: 803 (6) CE:1101 (B)(2) In custody cases, the rules of evidence relaxed: CE: 1101(B)(2). Admit. Weight of evidence. Verify authorship versus ownership. Authenticate. Watch spoofing. 66

67 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Facebook, Twitter, Youtube, Instagram, social media Hearsay Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems Hearsay Exception: Public Records: 803 (8) CE:1101 (B)(2) Court may allow circumstantial evidence to authenticate. Credit cardsHearsayOut 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. 67

68 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law PhotographsHearsay Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems Witness present to testify. Authenticate with witness. Court may allow photographs if relevant, foundation laid, and authenticated. Audio recordings HearsayOut of court statement to prove the truth of the matter. Declarant not present? Authentication problems Witness present to testify. Authenticate with witness. Court may allow photographs if relevant, foundation laid, and authenticated. 68

69 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Police reports Hearsay Bias Hearsay Exclusion from exception to hearsay Exception to Hearsay: CE:803(8) CE: 1101 (B)(2 Have custodian available to testify. Question witness about incident. 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

70 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Newspaper photo Hearsay Irrelevant? Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems. Is it relevant? Hearsay Exception: Public Records: 803 (8) CE:1101 (B)(2) 902 (6) Not hearsay if witness testifies at trial & available for cross examination State vs. Castro. 40 So. 2d 1036 (La. App. 5 Circ. 2010) Arrest for DUIHearsay Evidence of crimes wrongs acts: 404 B Arrest Records are not admissible pursuant to CE 404 B as they are evidence of crimes, wrongs, or acts to prove character of the person. Evidence of crimes, wrongs or acts may be 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

71 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law School recordsHearsayCustodian 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 School performance ratings HearsayOut of court statement to prove the truth of the matter. Declarant not present? Authentication problems? Argue bias? Prejudice? Public records exception 803 (8) If relevant, admissible under traditional public documents exception to hearsay. 71

72 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Daycare records Hearsay Out of court statement to prove the truth of the matter. Declarant not present? Authentication problems? Exception to Hearsay: Business records exception 803(6) In custody cases, the rules of evidence relaxed: CE: 1101(B)(2). Admit. Weight of evidence. Medical records HearsayOut of court statement to prove the truth of the matter. Declarant not present? Authentication problems? Business records exception 803(6). Exceptions to Hearsay. La. RS. 13:3714 Exception to Hearsay. La. RS. 13:

73 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response 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 HearsayOut 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: La. 40: Received into evidence as prima facie proof of its contents. 73

74 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Drug testHearsay 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 HearsayOut 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. Richardson versus Richardson, 974 So. 2d 761, La. App. 4 Cir

75 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Birth certificates Hearsay Out of court statement to prove the truth of the matter. Declarant not present? Exception to hearsay 803(9) Admit Employment Labor Reports HearsayRules are not relaxed in child support casesException to Hearsay. La. R.S. 13:3712 Exception to Hearsay. La. R.S. 13:3712 Labor reports are admissible and received as prima face proof of child support cases. Self- authenticating. 75

76 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Tax returnsHearsay 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 recordsHearsayOut 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). 76

77 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Map QuestHearsay Out of court statement to prove the truth of the matter. Relevance? Exception to Hearsay Public records exception 803(8) In custody cases, the rules of evidence relaxed: CE: 1101(B)(2). Custody Evaluation Reports Hearsay Out of court statement to prove the truth of the matter. Is declarant available? Exception to Hearsay Business records exception 803(6). Declarant to testify or not if court appointed? 77

78 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response 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: tapesHearsayOut 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:

79 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Parenting Coordinator Reports HearsayReport 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 , La.App. 1 Cir.,2013, May 31, 2013). Schneider v. Schneider --- So.3d ----, 2013 WL , 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 (8)(B)(iv) makes a distinction between factual findings resulting from a general investigation. 79

80 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Criminal Convictions Hearsay Bias 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) Mediation agreement HearsayEvidence 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. 80

81 Custody Trials Tangible Evidence ObjectionArgument Opposing Attorney Response Case Law Settlement Agreements 81

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