Cardashian’s In Court August 9, 2013

Cardashian’s In CourtAugust 9, 2013 Lisa Prater-Bailey Prater bailey & Associates, llc www.praterbailey.com Lorraine A. McCormick Mccormick & mccormick 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.

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

“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.

“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.”

“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).”

“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.”

“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.”

“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.”

“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)]”

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

“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.

“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.”

“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.

“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???)

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

“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.”

“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.”

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

“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.”

“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.”

“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.”

“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.”

“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.’

“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?”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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.”

“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)”

“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.”

“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.

“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.”

“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).”

“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)”

“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 WL1983419, La. App.2 Cir. ( 48,268 (La. App. 2 Cir. 5/15/2013)

“Cardashian’s In Court”Common Evidentiary Disputes During Contested Custody Cases Tangible evidence • 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?”

“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?”

“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.”

“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.”

“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.

Cardashian’s In Court August 9, 2013