The Role of a Child Custody Expert Witness

If you are a parent of a minor child, it’s likely that the issues in your family law case that are most challenging are those that have to do with the well-being of your child, like child custody. In a contested custody matter, a child custody expert witness can provide valuable support for your position.

What is an Expert Witness?

In most court cases, people other than the parties to the case are called on to testify regarding aspects of the case after swearing or affirming that they will tell the truth. Lay witnesses (or sometimes called fact witnesses) testify as to their observations and experiences—firsthand knowledge. For instance, if one parent alleges that the other is abusive to their small child, a person who witnessed the accused parent slap the child in the daycare parking lot might testify to that fact.

An expert witness, on the other hand, is intended to help the court understand the significance of information and events in the case. An expert is someone with a background that enables them to offer an opinion regarding the evidence in the case—not just an observation.

In a nutshell, lay witnesses provide “dots” of testimonial evidence regarding their observations; expert witnesses may also provide “dots,” but in addition can connect the dots to create a picture. Expert witnesses can offer their opinions, while lay witnesses cannot.

Who Is an Expert?

Maryland courts do not just allow anyone to offer an opinion as expert testimony. Maryland Rules of Evidence 5-702 state that “Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.”

How does a court decide whether expert testimony will be helpful?

• The witness is qualified as an expert by knowledge, skill, experience or education;
• The expert testimony on a particular subject is appropriate;
• There is a sufficient factual basis to support the expert testimony.

In 2020, Maryland adopted the standard first outlined in the federal case of Daubertv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) for admitting expert testimony. An expert opinion may be admitted based on these five factors to determine whether the expert’s methodology is valid:

• The theory or technique can be and has been tested;
• The theory or technique has been subject to peer review and publication;
• The particular scientific technique has a known or potential rate of error;
• Standards and controls are maintained; and
• The theory or technique is generally accepted.

Types of Expert Witnesses

Given the disputed issues in a child custody case, expert witnesses are frequently professionals in mental health, medicine, education, and child development. Often, an expert witness is called by one side or the other in a child custody case to support their position. However, the court may also order the involvement of a child custody evaluator in a contested matter.

A child custody evaluator ordered by the court is considered a neutral expert, and, as such, their opinion may carry additional weight. A child custody evaluator spends many hours with the child, parents, other family members, and other important adults in the child’s life, such as medical providers and educators. Accordingly, they get an in-depth look at the parents’ parenting skills and the family dynamics. They interpret all of this information for the court through the lens of their professional knowledge and distill it into a written report, and sometimes trial testimony if needed.

While the court is not required to rule in accordance with a child custody evaluator’s report, as a practical matter it often will. In addition to their neutrality, the evaluator’s training and depth of experience with the family can provide much more insight than the court would otherwise have. It is understandable that a court would rely heavily on that insight.

The neutrality of a child custody evaluator lends them great credibility as a witness, but an expert retained by one side can still have a significant impact on the outcome of a custody case. The fact that they were hired by one party doesn’t mean that they will recommend whatever that party wants.

Should I Have a Child Custody Expert Witness?

Not all custody disputes require the involvement of an expert witness. Retaining the services of an expert witness can be costly, and may be seen as escalating the case by the other side. However, there are certain situations when an expert witness’s services are worth the investment.

If you have genuine concerns that the other parent has been abusive or neglectful, or if the other parent has made allegations of abuse or neglect against you, a child custody expert witness can render an opinion about whether your child shows signs of having been abused and what custody arrangement would be best for their safety.

If you have a child with special needs, an expert can provide an opinion about which parent is better equipped to work with and meet the child’s needs. And if one parent is proposing a move out of state with the child, an expert witness can provide the court with insight as to whether the opportunities created by the move are worth disrupting the current stability of the child’s life. In an international custody matter, an expert witness can help the court understand the special risks and harms from such a relocation.

If your child’s other parent has retained an expert witness to testify in your child custody matter, it may be necessary to work with your own expert, who can provide a different perspective to the court.

Choosing an Expert Witness for a Child Custody Case

The decision of whether to hire a child custody expert witness in a case is a strategic one that must be made in conjunction with your family law attorney. Your attorney can help you weigh the factors involved in the decision and select an expert who is respected and unbiased.

To learn more about expert witnesses in child custody cases, contact Strickler, Platnick & Hatfield to schedule a consultation.