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2024 Regular Session
HOUSE BILL NO. 787
BY REPRESENTATIVES EGAN, CARVER, AND EDMONSTON
CHILDREN/CUSTODY: Provides relative to evidence in child custody cases
1 AN ACT
2To amend and reenact R.S. 9:331 and to enact R.S. 9:330, relative to evidence in child
3 custody cases; to provide for evidentiary restrictions during mental health
4 evaluations; to provide for applicability of the Children's Code in child custody
5 cases; to provide for evaluation by licensed mental health professionals in child
6 custody cases; to provide for a child's testimony in a child custody case; and to
7 provide for related matters.
8Be it enacted by the Legislature of Louisiana:
9 Section 1. R.S. 9:331 is hereby amended and reenacted and R.S. 9:330 is hereby
10enacted to read as follows:
11 §330. Evidence in child custody cases
12 A. Notwithstanding Code of Evidence Article 1101(B)(2), Code of Evidence
13 Article 1101(A) shall govern the admissibility of all evidence in any child custody
14 proceeding when the court is adjudicating factual allegations that a parent engaged
15 in specific conduct contrary to a child's best interest, or when a parent or other
16 person is tried for indirect contempt of court.
17 B. A child's testimony in a custody case shall proceed as follows:
18 (1) The child's testimony in the form of an interview shall be conducted in
19 the judge's chambers outside of the presence of the parents but shall be conducted
20 in the presence of their attorneys with a record being made by the court reporter.
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1 (2) The judge shall first determine the child's competency as a person of
2 proper understanding by interrogating the child with appropriate questions. The
3 attorney for the parent shall be allowed to participate in the competency examination
4 by asking questions and registering appropriate, but only necessary, objections.
5 (3) If the judge determines that the child is not a competent witness, the
6 judge shall immediately terminate the interview.
7 (4) If the judge determines that the child is competent, the judge may
8 continue the interview in the presence of the attorney for the parent only as an
9 observer. The attorney for the parent shall not participate by asking questions, cross-
10 examination, or registering objections, but the attorney for the child may ask
11 questions. The attorney for the parent may in advance of the interview submit to the
12 court in writing the proposed questions that the attorney deems relevant to the factual
13 allegations at issue or effect the best interest of the child. In the judge's discretion,
14 any relevant questions submitted by the attorney for the parent may be modified into
15 a more neutral and appropriate form, considering the child's age, maturity, and
16 vulnerability.
17 (5) When the court is adjudicating distinct factual issues regarding
18 allegations of detrimental parental conduct which the child may have witnessed or
19 experienced, the court shall obtain relevant information from the child in a manner
20 that minimizes any discomfort or fear that the child may experience.
21 C. Mental health evaluations conducted in child custody cases are subject to
22 the following evidentiary restrictions:
23 (1) Absent express consent of the parties, the court shall not read or consider
24 any report prepared by a mental health professional until the report is admitted into
25 evidence and all parties have been allowed the opportunity to cross-examine the
26 mental health professional in open court.
27 (2) No mental health professional's opinion on the credibility of any person
28 shall be admissible.
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1 (3) No mental health professional shall be permitted to testify to an opinion
2 concerning the application or interpretation of substantive law.
3 (4) The court shall not engage in any ex parte communication with any
4 mental health professional involved in any way with the litigation.
5 (5) No court shall delegate to any mental health professional the
6 determination of any disputed factual issues or any substantive determinations
7 concerning child custody or visitation.
8 D. The absence of an arrest or criminal prosecution or any state or local child
9 protection agency determinations made under Children's Code Article 615 shall not
10 be admissible or considered by the court as evidence regarding the occurrence of any
11 alleged parental conduct. However, evidence offered by a party which is otherwise
12 admissible shall not be excluded solely because it was previously considered in a
13 related law enforcement or child protection investigation.
14 E. In courts not exercising juvenile jurisdiction, no employee of the
15 Department of Children and Family Services shall be subpoenaed or be compelled
16 to testify in any child custody case concerning his official involvement in any
17 investigation, reserving to every such court, however, the reporting and referral
18 remedy set forth in Children's Code Article 308.
19 F. A video recording prepared in compliance with Children's Code Article
20 326 shall be admissible in any child custody proceeding if the provisions of
21 Children's Code Article 327 are satisfied.
22 G. A statement made by a child for the purposes of medical treatment, or
23 medical diagnosis in connection with treatment, otherwise admissible under Code
24 of Evidence Article 803(4), shall not be excluded by the court solely because the
25 health care professional to whom the statement was made failed to conduct an
26 investigation into the accuracy of the child's statements.
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1 §331. Custody or visitation proceeding; evaluation by licensed mental health
2 professional
3 A. The court may order an a mental health evaluation of a party or the child
4 in a custody or visitation proceeding for good cause shown. The mental health
5 evaluation shall be made by a licensed mental health professional selected by the
6 parties or by the court. The court may render judgment for costs of the mental health
7 evaluation, or any part thereof, against any party or parties, as it the court may
8 consider equitable, taking into consideration the parties ability to pay. The court
9 may preliminarily allocate costs at the outset and reserve the right to reallocate costs
10 upon conclusion of the matter. The court may order a party to submit to and
11 cooperate in the mental health evaluation, testing, or interview by the licensed
12 mental health professional. The licensed mental health professional shall provide the
13 parties with a written report and may be called as a witness, subject to cross-
14 examination by a party.
15 B. The With the parties consent, the court may order a party or the child to
16 submit to and cooperate in the evaluation, testing, or interview by the licensed
17 mental health professional. that a licensed mental health professional jointly selected
18 by the parties evaluate the family for the purpose of identifying and describing the
19 dynamics and relationships among the family members who would be impacted by
20 the court's custody or visitation judgment. The cost of any such evaluation shall be
21 equally shared by the parties. The licensed mental health professional shall provide
22 the court and the parties with a written report and may be called as a witness, subject
23 to cross-examination by a party. The licensed mental health professional shall serve
24 as the witness of the court, subject to cross-examination by a party.
25 C. "Licensed mental health professional" as used in this Chapter means a
26 person who possesses at least a master's degree and who is licensed holds a current
27 unrestricted license in counseling, social work, psychology, or marriage and family
28 counseling, or exempt from licensing requirements pursuant to R.S. 37:1113 and
29 1121.
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1 D. Any licensed mental health professional appointed by the court, or
2 selected by the parties, to conduct a mental health evaluation in a case where
3 domestic abuse is an issue shall have current and demonstrable training and
4 experience working with perpetrators and victims of domestic abuse.
5 D. E. When a licensed mental health professional has been appointed by the
6 court, or selected by the parties, there shall be no ex parte communication by the
7 litigants or their attorneys with the licensed mental health professional unless
8 authorized by law or court order or agreed to by the parties. All oral communication
9 with the licensed mental health professional shall be by teleconference or meeting
10 in which each party to the proceeding participates either through the party's attorney
11 or as a self-represented litigant. All written communication or correspondence to the
12 licensed mental health professional, along with any attachments thereto, shall be
13 provided contemporaneously to all parties to the litigation or their attorneys of
14 record. Communications initiated by the licensed mental health professional with
15 a litigant for the purpose of conducting the court-ordered evaluation shall not be
16 considered ex parte communications prohibited by this Subsection.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 787 Reengrossed 2024 Regular Session Egan
Abstract: Provides for the applicability of evidence in child custody cases.
Proposed law (R.S. 9:330(A)) provides that present law (C.E. Art. 1101(A)) governs the
admissibility of all evidence in child custody cases when the court is adjudicating allegations
of a parent not acting in the best interest of the child.
Proposed law provides guidelines for how a child's testimony shall proceed in a custody
case.
Proposed law (R.S. 9:330(C)) establishes evidentiary standards for mental health evaluations
in child custody cases.
Proposed law provides that the absence of an arrest or criminal prosecution or any child
protection agency determinations made under present law (Ch.C. Art. 615) shall not be
admissible as evidence that any alleged parental misconduct occurred.
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Proposed law provides that in courts not exercising juvenile jurisdiction, a DCFS employee
shall not be subpoenaed or compelled to testify in any child custody case concerning the
involvement of the employee in any investigation.
Proposed law provides that if the provisions of present law (Ch.C. Art. 327) are satisfied, a
video recording made pursuant to present law (Ch.C. Art. 326) shall be admissible in any
child custody proceeding.
Proposed law provides that a statement for the purpose of medical treatment shall not be
excluded by the court because the health care professional failed to investigate the accuracy
of the child's statements.
Present law (R.S. 9:331) references the evaluation of a party or the child in a custody or
visitation proceeding.
Proposed law specifies that the evaluations are mental health evaluations.
Proposed law provides that the court may render judgment for costs taking into consideration
the parties ability to pay.
Proposed law provides that the court may order a party to cooperate in the mental health
evaluation, and the mental health professional shall provide the parties with a written report
and may be called as a witness, subject to cross-examination.
Proposed law provides that, with the parties consent, the court may order that a licensed
mental health professional evaluate the family and the cost of the evaluation shall be equally
shared by the parties. The mental health professional may be called as a witness, subject to
cross-examination.
Proposed law provides that any licensed mental health professional appointed by the court,
or selected by the parties, to conduct a mental health evaluation in a case where domestic
abuse is an issue shall have current and demonstrable training and experience working with
perpetrators and victims of domestic abuse.
(Amends R.S. 9:331; Adds R.S. 9:330)
Summary of Amendments Adopted by House
The House Floor Amendments to the engrossed bill:
1. Modify evidentiary standards for mental health evaluations conducted in child
custody cases.
2. Change the guidelines for how a child's testimony shall proceed in a custody
case.
3. Make technical changes.
4. Provide that in custody or visitation proceedings, the court may render judgment
for costs taking into consideration the parties ability to pay.
5. Provide that in custody or visitation proceedings, the court may order a party to
cooperate in the mental health evaluation, and the mental health professional
shall provide the parties with a written report and may be called as a witness,
subject to cross-examination.
6. Provide that in custody or visitation proceedings and with the parties consent, the
court may order that a licensed mental health professional evaluate the family
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and the cost of the evaluation shall be equally shared by the parties. The mental
health professional may be called as a witness, subject to cross-examination.
7. Provide that in custody or visitation proceedings, a licensed mental health
professional conducting a mental health evaluation in a case where domestic
abuse is an issue shall have current and demonstrable training and experience
working with perpetrators and victims of domestic abuse.
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