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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117361
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am the domiciliary parent (father) and I gained full custody

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I am the domiciliary parent (father) and I gained full custody in '09, status went back to joint in '11 and now I'm back in court again. The minor child's mother Plaintiff is now seeking to be the domiciliary parent and move the child with her full time.

Can the plaintiff subpoena my wife to testify at this hearing?
Wouldn't her testimony fall under Spousal privilege?

Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Under LA Code of Evidence 504, there is a spousal privilege, applicable in civil matters, against giving testimony regarding confidential communications made between spouses. Thus, she can be called to testify about what she has seen and personally done or communications with the child. She cannot be made to testify about anything that was subject of confidential communications between you and your wife. Thus, her whole testimony would not fall under the privilege, only anything you and she discussed privately she could not be asked about. The courts hold spousal communications privilege will not apply when the communication in question is made in front of third persons.

The spousal privilege does not apply (1) in a criminal case in which one spouse is charged with a crime against the person or property of the other spouse or of a child of either; (2) in a civil case brought by or on behalf of one spouse against the other spouse; (3) in commitment or interdiction proceedings as to either spouse; (4) when the communication is offered to protect or vindicate the rights of a minor child of either spouse; and (5) in cases otherwise provided by legislation. Some “Cases otherwise provided by legislation” are exceptions to the husband- wife privilege established in La. R.S. 14:74 (criminal neglect of family), La. R.S. 14:403(F) (abuse of children), and La. R.S. 13:1676 (support of family).

The other article of the LA Code of Evidence, Section 505, is a spousal witness privilege that allows a spouse to refuse to take the stand at all but it only applies in a criminal case, not a civil or family law case.

Thus, depending on what they ask her when she testifies it may or may not fall under Article 504, but she can be subpoenaed to testify and she must appear and testify about anything she is asked that does not have to do with a confidential communication between you and your wife.

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