In many jurisdictions, teachers, principals, or school counselors are persuasive witnesses. Our courts are invariably persuaded by disinterested third parties. Certainly, if a child is doing well in school and his teacher can testify that your client is involved in the child’s school activities and work, your client has a very good chance of being successful in court. Ask your client about his child’s school performance and school activities. Gather the names, phone numbers and addresses of potential witnesses. Note the specific areas of their anticipated testimony and how it relates to the Article 134 factors. Also, obtain documentary evidence that supports your client’s case.
Under La. C.E. art. 1101, the rules of evidence can be relaxed in child custody matters. Nonetheless, the judge may only allow proper evidence in order to assure fairness. Do not withhold testimony or documents you would like the court to hear or view just because they might be inadmissible under the normal rules of evidence. Submit to the court that the evidence is relevant, probative, and admissible. Sharing such “improper” evidence in pre-trial scheduling orders1 or discovery and giving an opportunity for the other side to refute it bolsters your argument to the court for the admission of evidence under Article 1101.
Social media, particularly Facebook, have become a fertile source of evidence for custody litigation. Warn your client against the use of social media during custody litigation. Postings on Facebook, Instagram, Twitter, and other social media may be discovered by the opposing party and used as evidence.
It is always best to ensure that your main witness testimony and documentary evidence are admissible and constitute proper evidence rather than relying on the chance that either the opposing party or the judge is inattentive. The court has the authority and the “gate keeping” duty to ensure that the decision is based on proper evidence.2 Medical reports need to be certified.3 Police reports are not admissible unless a proper foundation exists.4
Opinion testimony by lay witnesses is governed by La. C.E. art. 701. Lay witnesses may express an opinion only if the court concludes that the opinion is “rationally based on the perception of the witness.” If an expert is court appointed, calling the expert as a witness at trial or deposing the expert are options.5 Be careful in not stipulating to the report and waiving the right to cross examine the expert. If so, you will be stuck with the expert’s custody/mental health evaluation report, which is usually relied on by the court. In some custody cases, parties may hire their own expert witnesses. Review each aspect of the expert’s anticipated testimony with him. Suggest areas of inquiry that opposing counsel may pursue in cross-examination. Be sure that you are both on the same page. The test for qualifying an expert is whether the expert has specialized knowledge that can assist the court in understanding the evidence or in determining a fact in issue.6 Anticipate Daubert challenges to witnesses. A good resource for preparing your custody case with expert witnesses is Chapter 11 of Linda D. Elrod’s Child Custody Practice and Procedure. Other valuable resources for trial preparation include West’s Louisiana Code of Evidence Handbook, Lowe’s Louisiana Divorce, §§ 3.34-90, and Triche’s Handbook on Louisiana Family Law, Title 5, Evidence Commentary.