You can argue that the general prohibition on admitting prior bad acts evidence does not apply. This argument would be particularly persuasive when the statute relied on instructs the court, either directly or indirectly, to consider a history or pattern of abuse. In child custody and visitation cases, the courts are more willing to accept evidence of domestic violence as a part of the best interests assessment. Most states require courts to consider the presence of abuse when making such determinations. Courts vary in the amount of evidence of abuse that is necessary to trigger a finding that a parent has engaged in domestic violence.
Some states require a conviction for a serious domestic violence-related crime.
In most states, a mere preponderance of evidence will suffice to prove domestic violence for the purpose of affecting the custodial decision. Practitioners can also argue that evidence of prior bad acts should be admitted to negate anticipated defenses. Although this theory is not well developed in the civil context, there is ample precedent on the criminal side for allowing prosecutors to admit evidence of a defendant s prior crimes in their cases in chief to counter anticipated defenses. An increasingly common defense in protection order and custody cases where allegations of abuse are made is that the victim has a motive to fabricate the allegations to gain an advantage in a divorce or custody case. If you anticipate the batterer will claim that your client fabricated the allegations, you can argue that evidence of prior abuse should be admitted to rebut this defense claim.