In child custody cases and protective order cases with child custody claims, special evidentiary rules apply. Under the La. C.E. art. 1101, the rules of evidence serve only as “guidelines” in proceeding involving child custody.1  In other words, the rules of evidence still apply in custody proceedings, but only “to the extent they promote the purposes of the proceeding.”2  The reason for relaxed evidentiary rules in child custody cases is that strict application of the rules does not always serve the best interests of the child.

The judge has significant discretion when determining what evidence to “allow in” under Article 1101. Although the flexibility of Article 1101 can be helpful in some custody proceedings, the rule can also be used by the abusive party to get in documents, statements, or even witness testimony that would usually not be allowed. Consider this risk when deciding how much flexibility you want the court to apply to the evidence you plan to present.

When planning to either offer or object to evidence under this rule, a good way to approach the argument is to think about the purposes of evidentiary rules in general. Evidentiary rules exist to ensure that evidence considered in court is both relevant and reliable. Evidentiary rules exist to ensure that the evidence that judges consider in court is both relevant and reliable. So, any party seeking to enter evidence under Article 1101 should be expected to demonstrate the evidence is both relevant to the issues before the court, and reliable enough to be considered. For example, one could argue that a certified police report that was prepared within hours of a call for service meets this test because it meets a general test for authenticity (i.e., it is what is says it is because it is certified) and reliability (i.e., it was prepared contemporaneously with the investigation, includes a statement against interest by the defendant or an excited utterance from the victim). If it is the other side attempting to introduce evidence under this article, be prepared to argue why the evidence’s authenticity should be called into question, why it may not be a reliable source of information, or why it may not be relevant (e.g., a letter indicating an abuse allegation was “unfounded” by child protective services could not meet a basic test for authenticity, does not fall under a hearsay exception, and is not relevant because it cannot be used as proof that the abuse allegations were more or less likely to be true).

• 1La. C.E. art. 1101(B)(2).
• 2Id.; see Gonzales v. Gonzales, 21-172, p. 2 (La. App. 5 Cir. 7/2/21), 2021 WL 2766900, writ denied, 2021-01211 (La. 11/10/21), 326 So. 3d 1251.

Evidence of similar crimes, wrongs, or acts involving domestic abuse, family, violence, or sexual abuse, may be admitted in a civil case under La. C.E. art. 412.5, so long at its probative value outweighs unfair prejudice under La. C.E. art. 403. As a matter of law, prior bad acts or crimes against the petitioner by the defendant are a key issue that must be considered."1  The probative value of this evidence in protective order and PSFVRA cases should pass an article 403 balancing test with only rare exception because under the DAAA, the court must consider “any and all history of abuse, or threats thereof” and the abuse need not be “recent, immediate, or present.”2  And in custody determinations under La. R.S. 9:364, the court is required to make a determination about whether there is a “history of family violence. So there is no question that prior acts of abuse are relevant and therefore admissible both protective order and custody cases.”3

Abuse against a different intimate partner or acts of violence against others should fall within this rule as well, if they are probative to issues such as the victim’s fear (if the prior abuse is known to her), the possibility of the children’s exposure to future abuse, and the defendant’s dangerousness to intimate partners. Prior bad acts against other intimate partners may also be relevant to prove intent, motive, or absence of mistake.4

Although there is a general prohibition against introducing convictions more than 10 years old under La. C.E. art. 609(B), arguably, the provisions of the more specific article, La. C.E. art. 412.5, should govern domestic abuse-related convictions. Article 412.5 does not create a time limit. Moreover, the imposition of a time limit arguably conflicts with both the DAAA and PSFRVA, which require that courts examine the history of domestic abuse or family violence.

Some of the strongest evidence of prior abuse is a conviction from a criminal proceeding. Even if the defendant has been convicted, do not rely on him to admit the conviction in court, and always plan to prove it without his testimony. To easily avoid authentication challenges, present the court with a certified copy of the conviction. A certified copy will also allow the judgment to be entered under the hearsay exception.5

Prior bad acts or convictions that are not related to domestic abuse or family violence must have a nexus to an issue relevant to the case, such as the victim’s fear, the likelihood of future abuse, a parent’s fitness, or the children’s safety during visits. It can often backfire to attempt to use prior criminal records for more general purposes, such as proving general bad character. Convictions for other crimes are not admissible for purposes of attacking a witness’s credibility, unless the conviction involves dishonesty or false statement.6  If introducing the conviction for a permissible purpose other than showing a prior history of domestic violence, it must not be more than 10 years old.7

• 1See Raney v. Wren, 98-0869, pp. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349-50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 2La. R.S. 46:2135(A); see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”); Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393; Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991) (noting that abuser’s past conduct is perhaps the most important evidence of his future conduct).
• 3See Raney v. Wren, 98-0869, p. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93-2128, pp. 11–12 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349–50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 4La. C.E. arts. 404(B), 402.
• 5La. C.E. art. 803(22).
• 6La. C.E. art. 609(A)(2).
• 7La. C.E. art. 609(B).

Louisiana law requires the police to write a report whenever they respond to a domestic violence call.1  A well-written police report will include the defendant’s admissions, excited utterances by those present, and a description of injuries. In Louisiana, however, police reports are generally inadmissible.2  You may be able to introduce a police report if the defendant does not object. Police reports (or testimony about them) are sometimes admissible in child custody actions under the limited applicability rules of La. C.E. art. 1101.3

In practice, many judges do not allow police reports in under Article 1101 and make a victim’s proof of domestic violence more difficult by excluding them.  Police officer witnesses may use the police report to refresh their recollection. Although police reports are generally inadmissible, a police report may still be used to cross-examination or impeach a defendant with prior inconsistent statements or omissions, which do not require a report’s admission into evidence. Additionally, a related arrest may be admissible even if the report is not, as discussed below.

Arrest records, on the other hand, are generally admissible in custody cases when relevant to an issue other than witness credibility, such as a parent’s fitness.  Although La. C.E. art. 609(F) prohibits an arrest, indictment, or prosecution from being used to attack a witness’s credibility, if the arrest tends to make the existence of any other fact of consequence to the determination of the action more or less probable, it is relevant and admissible.  So, for example, arrest records showing a parent’s history of serial abuse against prior intimate partners should be relevant to show lack of moral fitness or risk that the child will be exposed to future abuse. Arrest records that speak to the children’s best interests are admissible under La. C.E. art. 1011(B)(2).

• 1La. R.S. 46:2141.
• 2La. C.E. art. 803(8)(b); State v Sigur, 578 So. 2d 143, 147 (La. App. 1 Cir. 1990).
• 3But see Gautreau v. Gautreau, 96-1548, pp. 7–8 (La. App. 3 Cir. 6/18/97), 697 So. 2d 1339, 1346.

Partners who are abusive may make admissions to investigating police officers relative to acts of violence. Although they often minimize or justify their behavior, even the minimized behavior they admit to may constitute battery or assault which would constitute grounds for a protective order or finding of family violence. Such admissions are admissible as an exception to the hearsay rule.1

• 1La. C.E. arts. 801(D)(2), 804(B)(3). The applicable rule depends on the circumstances.

A threat by the abuser to harm the victim is not hearsay. It is an admission by a party opponent.1

• 1La. C.E. art. 801(D)(2)(a); see, e.g., State v. Burmaster, 97-517, p. 18 (La. App. 3 Cir. 2/25/98), 710 So. 2d 274, 283.

Letters, texts, or emails by the abusive party are his own statements and therefore are not inadmissible hearsay.1

Emails can be particularly easy to spoof, so it is important that a witness authenticate an email through testimony that establishes the history of party communication through the same email address, the existence of any substance or topic in the email that is specific to the defendant, how the witness knows the email is from the defendant, whether the witness printed copies of the email, whether the email copy has been altered in anyway, and whether the printed email is a true and accurate copy of the email the witness received.

• 1La. C.E. art. 801(D)(2)(a); State v. Strickland, 94-0025, p. 22 (La. 11/1/96), 683 So. 2d 218, 229.

Evidence of an abuser’s flight from crime scene (e.g., assault and battery of victim) is relevant and admissible as an indication of consciousness of guilt.1

• 1State v. Mills, 505 So. 2d 933, 948 (La. App. 2 Cir. 1987).

Former testimony in another hearing may be admissible if the defendant is an “unavailable witness” because of his refusal to testify in current proceeding.1  Additionally, testimony from any previous court proceeding, deposition, or sworn statement may be used for impeachment on cross-examination.

• 1La. C.E. art. 804(B)(1); State v. Adams, 609 So. 2d 894, 895–96 (La. App. 4 Cir. 1992).

Audiotapes of the defendant’s statements or threats, even secretly recorded telephone conversations, may be admissible.1  Louisiana is a single-party consent state when it comes to recording conversations. That means that only one party to the conversation needs to know that it is being recorded.2  911 tapes can be very compelling evidence. Defendants may leave threats on a telephone voicemail. Audio recordings of the defendant may be authenticated through the victim’s testimony that she recognizes the voice on the recording and how (e.g., she has talked to him on the phone many times).

• 1State v. Jeanlouis, 96-474, p. 7 (La. App. 3 Cir. 11/6/96), 683 So. 2d 1355, 1360; Briscoe v. Briscoe, 25,955, pp. 9–10 (La. App. 2 Cir. 8/17/94), 641 So. 2d 999, 1006–07.
• 2R.S.15:1303(B)(4).

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.1  Well-written police reports may contain excited utterances by the victim or children to which the police officer may testify. Also keep in mind that other hearsay statements like this that do not fall within the excited utterance exception can sometimes be later admitted in re-direct as a prior consistent statement once the witnesses’ credibility has been attacked.2

• 1La. C.E. art. 803(2).
• 2La. C.E. art. 801(D)(1)(b).

A child’s hearsay statements to a doctor, mental health professional, or abuse expert may be admissible.1  The Louisiana Supreme Court (and several courts of appeal) have concluded that a child’s hearsay statements should be admissible in child custody cases, PSVRA cases, and DAAA cases under the relaxed evidentiary standard of La. C.E. art. 1101.2

Note that not all statements made by children are hearsay. For example, if you are introducing the child’s statement to simply show that the child said something, rather than to show that what the child said was true, the statement would not be hearsay because it is not being offered for the truth of the matter asserted. An example of this would be a child calling his mother an obscene name that he has heard his abusive father call the mother.

• 1S.L.B. v. C.E.B., 2017-0978, pp. 24–26 (La. App. 4 Cir. 7/27/18), 252 So. 3d 950, 967–68 (affirming trial court’s admission of child’s audiotaped interview with doctor 4 days after injury where it was part of medical record in DAAA protective order hearing); G.N.S. v. S.B.S., 35,348, pp. 19–21 (La. App. 2 Cir. 9/28/01), 796 So. 2d 739, 750–51.
• 2For additional discussion, see Section 12.6.1.

The defendant may assert the Fifth Amendment privilege in a protective order hearing if there is a concurrent criminal prosecution. But his silence can be construed against him in a civil proceeding.1  And the existence of a pending criminal case does not constitute “good grounds” for a continuance.2  A petitioner’s constitutional right to a civil remedy prevails when weighed against a criminal defendant’s Fifth Amendment rights.3  So, it is not a violation of due process or the Fifth Amendment right against self-incrimination for a criminal defendant to have to defend a related civil proceeding.

Keep in mind that sometimes victims are wrongfully charged when poorly trained police respond to an incident of abuse. A common scenario in which this occurs is when the victim of abuse is trying to retrieve children from an abusive partner, and the police erroneously conclude your client is the aggressor or is not fearful because she has gone to his home. In cases like these, you may need to carefully consider any risks of client testimony. Although a finding in a protective order or hearing cannot be res judicata in a subsequent proceeding under La. R.S. 46:2134(E), any testimony given in civil court can be used against them in a criminal proceeding and for purposes of impeachment.

• 1See McCann v. McCann, 09-1341, pp. 7–8 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395 (applying adverse inference in a DAAA proceeding); Miles v. La. Landscape, 97-118, p. 4 (La. App. 5 Cir. 6/30/97), 697 So. 2d 348, 351.
• 2Malmay v. Sentry Ins. Co., 550 So. 2d 366, 369 (La. App. 3 Cir. 1989).
• 3Id.; Green v. Champion Ins. Co., 577 So. 2d 249, 262 (La. App. 1 Cir. 1991); Barbee v. Pigott, 398 So. 2d 137, 138 (La. App. 3 Cir. 1981); Bank of Com. & Tr. Co. v. Prejean, 262 So. 2d 798, 799 (La. App. 3 Cir. 1972).

Certified medical records may be admitted into evidence without a witness. La. R.S. 13:3714(A) governs the admission of medical records in Louisiana. That statute provides that a certified copy of a medical record shall be received in evidence as “prima facie proof” of its contents, upon the condition that the opposing party has the opportunity to summon the author as witness for cross-examination.1  Because medical records are considered inherently reliable, certification is the only requirement to lay a foundation of authenticity.

In domestic violence cases, medical records can present three common evidentiary issues that lawyers should plan for in advance: (1) notice to the opposing party, (2) hearsay within the medical record, and (3) statements made by your client that conflict with her testimony because she lied about the cause of her injuries. First, the notice requirement of this statute premises admissibility on fair notice to the other side. In non-emergency cases, this means attorneys should provide copies to opposing counsel of the records they intend to use far enough in advance of trial to allow for issuance of a subpoena.2  In emergency cases, notice is a trickier issue. Judges tend to admit certified medical records in emergency proceedings, but it is still a good idea to let opposing counsel know before the case begins that you will be introducing medical records. If opposing counsel nonetheless objects to the record’s admission on notice grounds, there is a strong argument to be made in favor of admitting the records. In emergency cases where a TRO has been issued, it is the defendant’s due process rights that require a quick hearing—to ensure that he is not subjected unfairly to an order of which he had no notice. If the defendant decides that he cannot fairly defend the case on such short notice, it is his right to request more time before being made to do so. If the defendant did not feel he could be prepared to meet the evidence, he could have requested more time to prepare. If he did not, even after being told that petitioner would introduce the records, that was a strategic decision. (Then, if necessary, indicate the extent to which you made efforts to comply with the notice requirement as best as possible).

The two other issues you should plan to deal with relate to the contents of the records. If there is hearsay within the document that you intend to admit as substantive evidence to prove the truth of matter asserted, you may need to argue other hearsay exceptions. To be clear about the rule, the statute allows the contents of the record to be taken as “prima facie proof.” But if, for example, there is a hearsay statement within the report, the report is simply prima facie proof that the statement was made, not of the truth of the statement. For that hearsay to be admitted as substantive proof, it must fall within a hearsay exception. Those exceptions will usually include statements in aid of medical treatment, excited utterance, and prior consistent statement. If medical records show your client attributing her injuries to a source other than abuse by her partner but provide good proof of the injuries, you should often seek to admit them anyway and prepare your client to testify about why she did not report the abuse to her doctor. In some cases, it is because the abusive partner accompanied her to the hospital or told her what to say. In other cases, it is attributable to shame or fear. Know why she told the doctor what she told them and make sense of it to the judge during her direct examination. Don’t forget to prepare your client for tough questioning on this in cross.

• 1La. R.S. 13:3714(A); see also Judd v. State, Dep’t of Transp. & Dev., 95-1052, pp. 9–10 (La. 11/27/95), 663 So. 2d 690, 696.
• 2Compare Perniciaro v. Hamed, 20-62, pp. 27–30 (La. App. 5 Cir. 12/16/20), 309 So. 3d 813, 834–36 (medical report that opposing counsel was unaware of until trial and for which no witness was called to authenticate was inadmissible under La. R.S. 13:3714(A)), with State ex rel. C.F., 52,741, pp. 13–14 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1265, 1273 (medical records admissible where certified by medical provider in court and opposing counsel had opportunity to subpoena author of records but decided not to).

Electronic evidence in the form of emails, text messages, Facebook posts, etc., present both opportunities and challenges for domestic violence litigation. Some of the best evidence of stalking and threats can be found in these sources. The mechanics of having them admitted into evidence can be tricky and require advance planning.

1. Text messages.
   • When possible, attorneys introducing text messages should have the cell phone with text messages available in court, but should present the evidence through either a printout of the messages or screenshots of them.1  You should rely on your client, not the abusive party, to lay the necessary foundation to authenticate them and to establish both the sender and the recipient of the communication. In general, you should ask your witness to identify the number and the name associated with that number, on the phone. The witness should testify how they know the number is associated with the other party (e.g., the parties had a history of text exchanges on those same numbers and the victim had previously received texts from the person on that number). In some cases, you may want to draw upon something in the substance of the exchange that is specific to the abusive party, such as a reference to something only he would know about, or the use of a nickname or other reference regularly used by the defendant (i.e., referring to a shared child by a nickname only the parties use).
   • Note that in addition to authenticating the substance/sender of the text messages as described above, you may also need to authenticate the photograph or printout of the text messages in the same manner as you would authenticate a photograph through testimony that the printout/photo fairly and accurately depicts the text messages as they appeared on the phone and has not been altered in any way.
2. Social Media Posts and Other Electronic Evidence.
   • Other forms of electronic evidence such as online videos, social media posts, or even surveillance videos must also be authenticated by a person familiar with the content and the people or places depicted. Louisiana courts have not drawn strict bright line rules for authentication of this type of evidence but have generally allowed the evidence where there is sufficient indication that the evidence is what you say it is.2

3. Evolving Technology

   • As “spoofing” and deepfakes of electronic have become more common, it is increasingly important that attorneys are well prepared to both authenticate and challenge the authenticity of electronic evidence. Practitioners should routinely update their knowledge on these issues as they evolve and utilize up to date resources that provide guidance.3

• 1Archaga v. Johnson, 19-85, p. 13 (La. App. 5 Cir. 10/16/19), 280 So. 3d 331, 341 (holding that texts and emails were properly authenticated when the sender’s name was on the printout and when witness testified to receiving the texts on her phone, screenshotting them, and printing them herself); see also State v. Haydin, 17-234, p. 12 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1293, 1301 (holding that a text message was properly authenticated when the witness testified to receiving it on their cell phone, saved the sender’s contact information in their phone, had previously communicated with the sender via phone, and was present when a picture of the text was taken).
• 2State v. Smith, 2015-1359, pp. 9–10 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836, 842 (applying the “reasonable juror” standard to authentication of social media posts, in which a party must provide enough evidence to support a finding that proffered evidence is what they say it is”); see also State v. Gray, 2016-1195, pp. 25, 30 (La. App. 4 Cir. 6/28/17), 2017 WL 3426021, at *13, *16 (holding that YouTube videos were sufficiently authenticated when witness testimony identified all three YouTube videos, identified the person in the videos, and identified the locations within the videos); State v. Groves, 2020-0450, p. 31-32 (La. App. 4 Cir. 6/10/21), 323 So. 3d 957, 977 (holding that Instagram videos and screenshots were authenticated/admissible when witness testimony identified the videos, screenshots, persons in the videos, when the videos were made, and how they were obtained); State v. Rice, 2017-0446, p. 3 (La. 6/29/17), 222 So. 3d 32, 33-34 (holding that authentication was sufficiently shown for surveillance video evidence when a witness testified that they personally maintained the surveillance system, personally knew the video, and explained how the video was created). But see State ex rel. J.H., 2022-0324, p. 13 (La. App. 4 Cir. 8/9/22), 2022 WL 3210100, at *6–7 (holding that video evidence was not properly authenticated when there was no testimony about the video’s accuracy and when chain of custody was not established).
• 3See generally Riana Pfefferkorn, ”Deepfakes” in the Courtroom, 29 B.U. Pub. Int. L.J. 245 (2020) (explains what deepfakes are, offers thoughts and guidance on how to challenge suspected deepfakes and defend against deepfake allegations, all from a POV that believes current rules of evidence will be sufficiently equipped to handle growing issue).

The admissibility of expert testimony is governed by La. C.E. art. 702. That article provides, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”1  Expert testimony can be used in a variety of ways in domestic violence cases. Topics for experts might include showing why a victim’s fear is rational by contextualizing the abuse, illuminating the effects of abuse on the victim or family dynamics, explaining the parenting deficits associated with domestic violence perpetrators, explaining the effects of domestic violence on children, explaining why a child might show fear of, or alignment with, an abusive parent, rebutting allegations of parental alienation, or educating the judge about strangulation, lethality, trauma, or memory.

In practice, many judges believe that testimony from experts with medical or doctorate degrees—such as psychiatrists or psychologists—should be given more weight than testimony from experts with less advanced degrees. But few professionals in these fields have received specialized training in intimate partner violence. Licensed clinical social workers and others working directly with survivors often have the most relevant expertise for cases involving intimate partner violence or child abuse, and they can be qualified as experts. The Post-Separation Family Violence Relief Act creates standards for demonstrative experience that can help practitioners overcome judicial bias that favors advanced degrees over substantive training and expertise. And in at least one Louisiana case, the defendant raised a Daubert challenge to testimony from a clinical social worker with a specialty in domestic violence intervention and prevention, and the Louisiana Fifth Circuit Court of Appeal upheld the trial court’s admission of the testimony.2

• 1La. C.E. art. 702(A)(1).
• 2McFall v. Armstrong, 14-1041, pp. 10–11 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 37–38; Duplessy v. Duplessy, 12-69, p. 5 (La. App. 5 Cir. 6/28/12), 102 So. 3d 209, 212.

Child custody cases under the PSFRVA present important relevance issues that must be raised by lawyers representing victims. Because the PSFVRA mandates specific outcomes once a determination of “family violence” is made, the “best interests” evidence normally considered in custody determinations is usually not relevant. The perpetrator may want to testify that he takes his kids to church every Sunday or coaches the soccer team, but that type of evidence has no bearing in a PSFVRA case. Lawyers should be diligent in objecting to that type of evidence so that it does not detract from the relevant abuse issues.