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THE ADMISSIBILITY AND RELEVANCE OF PRIOR BAD ACTS IN CHILD CUSTODY CASES
1996 National Legal Research Group, Inc.

I. INTRODUCTION

Most child custody matters are not litigated. Rather, the parties simply reach agreements concerning child custody and visitation. Furthermore, in most litigated cases, parties rarely attempt to assassinate the character of their opponents. In the minority of cases, however, parties have committed prior bad acts which may indicate that they would not make proper custodial parents. These latter cases are the focus of this article.

The main purpose of this article is to provide practitioners with guidelines concerning when prior bad acts may be admissible. In determining admissibility, however, unless the evidence is hearsay or is excluded by some other evidentiary device, the main issue is whether the prior bad act or acts are probative of a parent's ability to be a good custodian. Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800 (1966). Therefore, this article includes cases which discuss the relevance of prior bad acts generally, and practitioners may refer to these cases as precedents concerning the admissibility of specific acts in child custody matters.

II. PRIOR BAD ACTS WHICH MAY BE ADMISSIBLE

Of course, there are myriad types of prior bad acts that the court may consider. Nonetheless, certain acts tend to occur more often than others. This section focuses on the admissibility of prior acts of abuse, drunkenness, adultery, and other commonly discussed prior bad acts.

Physical and Mental Abuse

If a parent has been abusive toward the child, courts usually conclude that this prior abuse is very probative concerning the issue of whether that parent will continue to be abusive. For this reason, evidence of prior abuse of a child is almost always relevant. In fact, evidence of past incidents of child abuse will often cause the court to severely restrict the abuser's right to visitation. For example, in John O. v. Jane O., 90 Md. App. 406, 601 A.2d 149 (1992), a significant amount of evidence indicated that the father had sexually molested the child. These incidents of abuse were reported by a social worker who was working on the case. Also, the mother's brother reported that the husband had inappropriately touched the child. Furthermore, in the presence of a court-appointed psychiatrist, the father inappropriately touched the child. Additionally, a medical doctor reported that the father was a pedophile, who preferred children in their early teens. Based upon this evidence, the trial court denied custody to the father, but awarded the father unsupervised visitation.

On appeal, however, the court of appeals suggested to the trial court that "on remand [it] may wish to take another look at the situation, as it currently stands, to see whether supervised visitation is indicated." 601 A.2d at 163. Thus, incidents of child abuse are certainly relevant to the issue of child custody, and may cause the court to limit the abuser's right of visitation. See also N.R. v. State Department of Human Resources, 606 So. 2d 161 (Ala. Civ. App. 1992) (father denied custody; repeatedly struck child with wooden paddle); Kim v. Kim, 208 Cal. App. 3d 364, 256 Cal. Rptr. 217 (1989) (refusal to award custody to father who shot and paralyzed his ex-wife and admitted physically and sexually abusing child was not abuse of discretion); In re Jackson, 199 Mich. App. 22, 501 N.W.2d 182 (1993) (mother threw hot coffee in child's face); In Interest of C.K.G., 827 S.W.2d 760 (Mo. Ct. App. 1992) (mother's boyfriends had physically and sexually abused child). But see Whitmore v. Fischer, 397 N.W.2d 371 (Minn. Ct. App. 1986) (where evidence indicated that abuse by wife's new husband would not continue because no abuse had occurred within the past three years, evidence of abuse did not prevent court from awarding custody to wife); Uhl v. Uhl, 413 N.W.2d 213 (Minn. Ct. App. 1987) (despite reported incidents of child abuse by mother, mother was properly awarded custody of children; reported abuse appeared to be nonrepetitive and corresponded with stress wife was under, and wife was open to therapy).

In addition, abuse toward the other parent or third parties is also highly relevant. Courts believe that if a parent has abused others in the past, it is quite possible that when the dust clears, that parent will abuse the child or children at issue. Courts will often consider this evidence even if there is no evidence of direct abuse of the children. For example, in In re Marriage of Wiley, 199 Ill. App. 3d 169, 556 N.E.2d 809 (1990), the parties were parents of twins. At the parties' divorce proceedings, the evidence indicated that the wife was "a passive, gentle, kind, and calm person." 556 N.E.2d at 811. However, other evidence indicated that the husband was physically and verbally abusive toward the wife. On one occasion, the husband had hit the wife on her head while she was holding her baby. Also, the wife's mother noticed bruises on the wife, and the mother testified that the husband had admitted hitting the wife while she was pregnant. After considering the substantial amount of evidence of spousal abuse, the trial court concluded that "this behavior could be exhibited toward the children in the future." Id. at 813. For this reason, the court awarded custody to the wife.

On appeal, the husband argued that the court should not be permitted to consider the evidence of spousal abuse, because there was no evidence that the husband had ever abused the children. The appellate court rejected this contention. As the court wrote, "`it is not unreasonable for a trial judge to conclude continuing physical abuse by one parent to another will cause emotional damage to a child and thus constitute neglect.'" Id. at 814 (quoting In re A.D.R., 186 Ill. App. 3d 386, 542 N.E.2d 487, 492 (1989)). Hence, because evidence of abuse of a spouse tends to show that the abuser may cause injury to the children in the future, it is proper for the court to consider evidence of abuse of a party in a child custody matter, even if there is no evidence of abuse of the children. See also Sellers v. Sellers, 555 So. 2d 1117 (Ala. Civ. App. 1989) (a husband who had beaten his wife was not entitled to an award of custody); Lane v. Jefferson County Child Welfare Unit, 564 S.W.2d 130 (Tex. Civ. App. 1978) (termination of parental rights was proper where father's violent behavior was committed in presence of child, though not directed at child).

As the above authorities indicate, abusers are not likely to win child custody matters. For this reason, practitioners should be cautious when considering whether to present evidence of abuse. Child custody matters should not be used as forums for assassinating the character of parents. Most parents are caring, loving people. For this reason, and because parties clearly have a strong incentive to accuse their opponents of abuse, it is likely that courts will view with skepticism any oral testimony of abuse by parties. Thus, if a party desires to make abuse an issue, the party should (1) present testimony from third parties, including neighbors, teachers, psychologists, psychiatrists, and social workers, and (2) present evidence that speaks for itself, such as pictures of bruises on the child or medical evidence of abuse. Otherwise, the party will only be able to present oral testimony of abuse. If oral testimony by a party is the only evidence of abuse, since the party has a strong incentive to lie about the abuse, the court is likely to conclude that the abuse did not occur.

Abuse of Drugs and Alcohol

It is fairly clear that where a party is a habitual offender of drugs or alcohol, it is not in the best interests of the child for that parent to be awarded custody. For this reason, evidence of abuse of drugs and alcohol is highly relevant in a child custody matter. The court reached this conclusion in Kotrla v. Kotrla, 718 S.W.2d 853 (Tex. Ct. App. 1986). In Kotrla, the husband tape recorded a telephone conversation with the wife. In the conversation, the wife "admitted having used cocaine, once growing marihuana plants and that if she `had the money' she would have a `cocaine habit.'" Id. at 855. The trial court permitted the husband to introduce this tape into evidence. On appeal, the wife argued that the evidence should not have been admitted because it occurred several years prior to the marriage. The court held, however, that "[p]rior involvement with drugs is certainly relevant to whether a parent should be awarded custody of a child." Id.

For other cases where the court denied custody to a party based, in part, on abuse of drugs or alcohol, see, e.g., M.C. v. L.B., 607 So. 2d 1267 (Ala. Civ. App. 1992); In re Levi, 131 Ga. App. 348, 206 S.E.2d 82 (1974) (parental rights terminated); Odom v. Allen County Department of Public Welfare, 582 N.E.2d 393 (Ind. Ct. App. 1991) (parental rights terminated); In re Marriage of Oertel, 216 Ill. App. 3d 806, 576 N.E.2d 435 (1991); Read v. Fontenot, 392 So. 2d 790 (La. Ct. App. 1980); Cooper v. Cooper, 579 So. 2d 1159 (La. Ct. App. 1991); Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992); In re Synovia G., 163 A.D.2d 257, 558 N.Y.S.2d 539 (1990); In re Marriage of DeSantis, 109 Or. App. 76, 817 P.2d 769 (1991) (visitation rights denied); and Rosati v. Evans, 180 W. Va. 631, 378 S.E.2d 840 (1989).

In some circumstances, a denial of custody based upon the abuse of drugs was not justified. In these cases, the court usually determines that the abuse was not relevant because of the abuser's rehabilitation or because the abuse did not affect the child. See, e.g., Creel v. Creel, 582 So. 2d 1153 (Ala. Civ. App. 1991) (mother successfully completed drug treatment program); Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974) (use of drugs was sporadic and did not affect the children); Ex parte Ray, 573 S.W.2d 152 (Mo. Ct. App. 1978) (children never observed drug use); In re Michael B., 80 N.Y.2d 299, 590 N.Y.S.2d 60 (1992) (parent completed rehabilitation program).

Adultery

Unlike the issue of the relevancy of abuse of drugs or alcohol or the issue of the relevancy of physical or mental abuse, most courts that have considered the issue recently have concluded that evidence of adultery is only relevant if it can be proven that the adultery has affected the children. For example, in Murphree v. Murphree, 579 So. 2d 634 (Ala. Civ. App. 1991), the parties' marriage produced two children. A substantial amount of evidence, including the mother's own testimony, indicated that the mother had several adulterous affairs. The trial court refused to award the wife custody, and the wife appealed.

On appeal, the court noted that "[b]efore custody may be denied on the basis of indiscreet behavior, there must be evidence showing that such misconduct is detrimental to the child." Id. at 636. The court further noted that the children were actually affected by the wife's affairs, and, therefore, the trial court did not err in considering this evidence when entering its custody decision:

Id. Thus, in order for the court to consider adultery, it must be proven that the adultery affected the children. See also Mock v. Mock, 258 Ga. 407, 369 S.E.2d 255 (1988) (mother's adultery was not relevant absent evidence that the adultery affected the children); Massman v. Massman, 784 S.W.2d 848 (Mo. Ct. App. 1990) (sexual misconduct cannot cause the court to deny custody absent evidence that the misconduct will have an adverse impact upon the children); David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989) (evidence of adultery is not relevant unless it affects children).

It should be noted, however, that when the adultery has occurred with a homosexual partner, effectively, evidence concerning these relationships is per se relevant. Thus, when it can be shown that a party has committed adultery with a homosexual partner, the trial court may base its determination on this evidence in the absence of any showing that the relationship affected the interests of the child. See, e.g., G.A. v. D.A., 745 S.W.2d 726 (Mo. Ct. App. 1987) (lesbian mother denied custody even though children were both teenagers who had known about the homosexual relationships for many years); In re Marriage of Williams, 205 Ill. App. 3d 613, 563 N.E.2d 1195 (1990).

As with evidence of child abuse, practitioners should be cautious in introducing evidence of homosexual relationships. It appears that such evidence will virtually guarantee victory for the nonadulterous spouse, because there is no need to show that the relationships have negatively affected the children. Until, or unless, this standard changes, courts should not just rely on the testimony of parties; rather, they should demand objective evidence of the relationships. Otherwise, courts could effectively declare that a parent is a homosexual, against that parent's wishes, by simply denying custody to a parent on the testimony of the other party. Because of this potential for abuse, perhaps it is time that courts require a showing that the relationship has negatively affected the children, or at least require more evidence than oral testimony of the parties.

White-Collar Crimes

While relevant, the commission of nonviolent, white-collar crimes will rarely cause a court to deny custody to a parent. Thus, the court did not deny custody to the father simply because of his white collar crime in Shepherd v. Shepherd, 531 So. 2d 668 (Ala. Civ. App. 1988). In Shepherd, the parties' marriage produced two children. At the time of the divorce, the children were ages seven and nine, respectively. During the marriage, the husband pleaded guilty to several counts of Medicaid fraud in connection with his dental practice. Subsequently, the husband lied on his application to reobtain his license to practice. Regardless of this evidence, however, the trial court awarded custody to the husband. On appeal, the wife contended that "such conduct by the husband is reflective of the husband's character to such a degree that the trial court's award of custody to him [constituted] a palpable abuse of discretion." Id. at 670. However, the court of civil appeals noted that the husband was the primary caregiver. For this reason, the court held that the trial court properly awarded custody to the father in spite of the conviction. Hence, unless the evidence shows that a white-collar crime has affected or will affect the children, the court should not deny custody on this basis.

Indecent Exposure

The evidence of this conduct is not as strong as evidence of abuse or adultery. For this reason, courts may consider such evidence, but will rarely reach a conclusion on this basis. See DeNillo v. DeNillo, 369 Pa. Super. 363, 535 A.2d 200 (1987) (trial court awarded joint custody even though father was arrested for indecent exposure; superior court reversed the decision on other grounds).

Prior Abortions

Not only are prior abortions not strong evidence of a parent's ability to care for the children, such evidence is not relevant and not admissible. Apparently, courts are unwilling to consider evidence concerning an act which the Supreme Court has declared to be a constitutional right. See, e.g., Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987); Fort v. Fort, 12 Mass. App. Ct. 411, 425 N.E.2d 754 (1981).

III. FACTORS WHICH AFFECT ADMISSIBILITY: THE THREE Rs

Section II provided a list of acts which may be admissible. In determining whether to admit evidence of the acts listed in Section II, the court considers three main factors. First, courts will consider whether the evidence of the act is so remote in time that it is no longer relevant to the issue of whether a parent would be a good custodian. Second, courts will consider whether the alleged act has been performed repeatedly, or whether the act was an isolated incident. Third, courts will consider whether the actor has been rehabilitated from the alleged prior bad acts.

Remoteness

Although child abuse would be an important consideration in any child custody determination, not all incidents of abuse, especially incidents that do not involve the child or children at issue, are admissible. Evidence concerning incidents of abuse should only be admissible if the prior incidents indicate that the parent may abuse the child in the future. Thus, if one incident of abuse occurred long before the child custody proceeding, unless the incident was part of an ongoing pattern of abuse, the incident would not be admissible.

The reason for this rule is simple. Generally, prior bad acts are not admissible for the purpose of showing that a person acted in conformity with the bad act. S.J. Van Lill Co. v. Frederick City Packing Co., 155 Md. 303, 141 A. 898 (1928). Courts adhere to this principle because a prior bad act does not necessarily tend to prove that the person would recommit the same act. Rather, it is possible that the act was a mere anomaly in the person's life, and the act is not likely to be repeated. Thus, if the event occurred many years before the proceeding, and the event was not repeated, the event would probably not be part of the person's character, and the probative value of the event is greatly diminished. Therefore, the event would not be relevant in a child custody matter.

For this reason, it is well settled that if the incident occurred in the distant past, and the incident is not part of a recurring pattern, the incident is not admissible. The Court of Appeals of Maryland recognized this principle in the case of Kremis v. Kremis, 163 Md. 223, 161 A. 255 (1932). In Kremis, the husband filed an action for divorce against the wife on the ground of adultery. The wife denied that she committed adultery, and alleged condonation. As evidence that the wife committed adultery, the husband attempted to offer testimony that indicated that 20 years earlier the wife had committed adultery in a previous marriage. The trial court admitted the testimony, and the wife appealed. 161 A. at 257.

On appeal, the trial court's decision to admit the evidence of the prior act of adultery was reversed. In reaching this conclusion, the Court of Appeals of Maryland wrote that "[t]he fact, if it was a fact, that she had on a former occasion years before been guilty of another adultery while married to a man from whom she was later divorced, was not admissible to prove that she had committed the adultery charged in this case." Id. Thus, in the family law context, if an event occurred many years before, and it is not part of a repeated pattern, the evidence does not tend to establish that the event is likely to be repeated. Therefore, any evidence of the event should not be admitted.

This rule is particularly applicable where one spouse attempts to prove abuse by the other spouse in a child custody matter. Although the authority is not clear, it appears that if the alleged prior bad acts occurred more than five years before a custody proceeding, unless the prior act which occurred in the remote past is part of a pattern of abuse, the prior act is not admissible for the purpose of showing that the person who committed the act would not make a suitable custodial parent. The court reached this conclusion in Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987). In Roeh, the parties had one minor child. The wife was married to another man previously, but that marriage ended in divorce. In the current proceeding, the trial court awarded primary physical custody of the parties' child to the husband. In reaching this decision, the trial court relied almost exclusively on evidence of premarital affairs, abortions, and other facts that had occurred between seven and eight years before. Also, the trial court considered evidence that, when she was younger, the wife consumed drugs and alcohol. The wife appealed this decision to a higher court in Idaho, and that court determined that these facts were "too remote in time to be relevant in determining the best interests of the child." 746 P.2d at 1016. The husband appealed this decision.

On appeal, the Idaho Court of Appeals held that the evidence was properly excluded. The court specifically noted that only evidence which is relevant to a party's current ability to care for the child should be admitted. Evidence that only indicates that the parent may not have been a good parent sometime in the distant past should not be admitted:

Id. at 1017-18 (quoting Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800, 804 (1966)). Thus, unless the facts somehow indicate that the parent would not, in the present, serve as a suitable custodial parent, evidence of events that occurred in the distant past should not be admitted. Hence, as the court noted, because there was no connection between the past events and the wife's present ability to serve as custodial parent, the evidence was not admissible:

Roeh v. Roeh, supra, 746 P.2d at 1018. Thus, as the court stated, unless a connection is drawn between the prior conduct and the parent's present ability to care for the child, the evidence of prior conduct is mere "speculation and innuendo." Id. Therefore, unless the evidence is part of a pattern of abuse, it is reversible error to admit evidence of prior conduct in a child custody matter.

The court entered a similar decision in In re Marriage of Starks, 259 Mont. 138, 855 P.2d 527 (1993). In Starks, the parties were divorced. Pursuant to the divorce decree, the wife was awarded custody of the parties' minor daughter. Seven years later, the husband petitioned the trial court for a change of custody. At the hearing, the wife attempted to offer evidence of the husband's conduct that occurred seven years before the custody proceeding. The husband objected to the introduction of this evidence. The trial court excluded the evidence on the ground that the facts were too remote to have any probative value. The wife appealed.

On appeal, the Supreme Court of Montana held that the evidence concerning the husband's prior conduct was properly excluded. In reaching this decision, the court noted that facts which occurred in the distant past, unless repeated, are simply not probative of the husband's present ability to care for the child:

855 P.2d at 532 (emphasis added). Thus, since the evidence does not tend to prove that the parent would be a less able custodial parent, evidence of conduct which occurred several years before the custody hearing is not admissible. See alsoPeisach v. Antuna, 539 So. 2d 544 (Fla. DCA 1989) (testimony of psychiatrist who briefly treated custodial parent seven years prior was of no relevance to parent's present ability to care for the child); Webster v. Webster, 517 So. 2d 5 (Ala. Civ. App. 1987) (evidence that indicated that mother abused children approximately eight years before the trial was not admissible); Blankenship v. Brookshier, 91 Idaho 317, 420 P.2d 800 (1966) (crimes which occurred more than six years before the proceeding were too remote to be relevant).

If, however, the alleged acts occurred within the past three years, the evidence is probably not too remote. For example, in Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct. App. 1989), the parties separated in 1986. The evidence indicated that shortly before their separation the parties used narcotics. The court distinguished this evidence from the evidence in Roeh v. Roeh, 113 Idaho 557, 746 P.2d 1016 (Ct. App. 1987), by noting that the drug use in Roeh occurred many years before the custody proceeding, whereas the alleged narcotics use "was not of such a remote or non-relevant nature." Milliron v. Milliron, supra, 775 P.2d at 148. Thus, the only real distinction between the incidents in Roehand the incidents in Milliron is that the incidents in Roehoccurred more than five years before the proceeding, whereas the incidents in Milliron occurred within three years of the proceeding.

Repetition

Where the alleged acts were isolated and not part of a pattern, the court is far less likely to consider the prior bad acts. SeeWhitmore v. Fischer, 397 N.W.2d 371 (Minn. Ct. App. 1986) (no abuse had occurred within past several years; abuse did not affect the best interests of the child); Kremis v. Kremis, 163 Md. 223, 161 A. 255 (1932) (isolated, unrepeated incidents are not relevant).

Rehabilitation

It is also a well-established principle that if a party has rehabilitated himself or herself, the court should not consider the prior bad acts. This issue occurs most often when a parent is accused of drug or alcohol abuse. For example, in In re Marriage of Mangan, 182 Ill. App. 3d 140, 537 N.E.2d 960 (1989), the parties had one minor child who was chronically ill. The wife alleged that the husband "was an alcoholic and an unfit father as a consequence." 537 N.E.2d at 961. In support of her allegations, the wife alleged that the police had stopped the husband twice for driving under the influence of alcohol when the husband was a teenager. However, other evidence indicated that the husband rarely consumed alcohol by the time of the custody hearing. For this reason, "the trial court found him to be an alcoholic but also found that he had rehabilitated himself and that alcohol had not interfered with his parenting skills or the time spent with his child." Id. After the trial court awarded custody to the husband, the mother appealed.

The Appellate Court of Illinois affirmed the decision of the trial court. The appellate court noted that the evidence indicated that the husband was an alcoholic. However, the husband had "rehabilitated himself." Id. at 963. Therefore, since the husband's alcoholism would have no effect on the child, it was proper for the trial court to refuse to consider this evidence when it entered its custody order. Accord Creel v. Creel, 582 So. 2d 1153 (Ala. Civ. App. 1991) (mother successfully completed drug treatment program).

As this case illustrates, if a parent can prove rehabilitation, the court should not consider evidence concerning the behavior which was corrected. For a practitioner with a client who commits physical abuse or drug and alcohol abuse, this rule presents a problem and requires delicate balancing. Of course, it can never hurt the family to advise an abusive client to enter a treatment program. However, advising a party to enter a treatment program prior to custody proceedings is proper only if (1) it cannot reasonably be disputed that the person is an abuser, and (2) the program can be completed, so that the person can be considered "cured" before the custody proceedings. If there is a question about whether the client is, in fact, an abuser, recommending that the party enter a program may only add to the evidence against the client. Furthermore, if the program cannot be completed before the proceedings, the client will be considered an admitted and uncured abuser by the court. In such circumstances, that client will have difficulty winning a contested custody battle.

IV. CONCLUSION

The authorities cited in this article discuss which prior bad acts are commonly considered by courts in child custody matters. If the acts were fairly recent and clearly have a negative impact on a child, the court should consider the acts.

However, "negative campaigning" is not usually the best way to win a child custody matter. Rather, courts are far more concerned about which parent was the primary caregiver in the family. If the acts of abuse, alcoholism, or adultery are not likely to affect the children in the future, courts should not consider evidence of these acts. Except in joint custody situations, which are usually reached by the agreement of the parties, it is most likely the case that one parent will be the primary custodian and the other parent will be awarded visitation. Thus, it is important that the parents recognize that they will need to cooperate after the divorce. Parties are far less likely to cooperate later if they use the custody proceedings as a place to cause injury to their opponents.

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