12.6.1 Special Evidentiary Rules for Custody Cases

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.