By Jessica Bryant
In many of the divorce, custody, and child support cases I have handled over the years, the question of expert witnesses has often arisen. There are different types of experts that may be relevant, necessary, or helpful, depending on the issues in dispute in your case. Ultimately, your experienced Colorado family law attorney is the best person to advise you as to what is the best fit for your case. For any case, there are experts that can be appointed by the court to complete certain tasks, and experts you can hire yourself to provide certain information.
Some types of appointed experts which may be appointed in a divorce or child custody case are as follows:
- Child and Family Investigator and/or Parental Responsibilities Evaluator: These are trained and qualified individuals that can be appointed by the court to look into child related issues and to make recommendations to the court as to how decision making responsibilities and/or visitation should be allocated. Both types of experts meet with the parties, meet with the children, and generally visit the homes of the parties. However, a Parental Responsibilities Evaluator also conducts mental health testing of the parties and is more in-depth, as there is no monetary cap on the amount a PRE investigation could cost. CFI’s are generally capped at $2000 and in many cases can investigate the important issues. Which expert to use will depend upon the issues and facts in the case.
- Vocational Evaluator: This type of expert is most relevant in cases involving claims for child support or alimony (properly termed maintenance). Specifically, this individual can be appointed by the court if there are concerns that a party may not be earning as much income as he or she capable of based on his or her income earning history and/or education. In other words, if a party is voluntarily unemployed or underemployed, this type of expert can testify to the court as to how much they believe the individual is capable of earning. This type of expert can also be helpful in the opposite situation, if a party is physically or mentally incapable of working full-time he or she may need a vocational evaluator to testify to such to the court.
- Appraisers: This type of expert is most relevant in a divorce case where the division of property and debt is at issue. If there a certain high-value property items that cannot be easily valued by viewing an account statement (i.e., real estate, businesses, jewelry, pensions) this type of individual can be appointed by the court to testify as to the value of such item. In some instances, parties may have dueling experts. Property valuations only arise in divorce cases.
In addition to experts which might be appointed by the court, a party to a case may also retain their own experts. Any party can retain an appraiser or a vocational evaluator to complete an evaluation on his or her property or his or her own income earning capabilities, respectively, without needing that individual appointed by the court. However, it is often more cost effective to confer with the other party to see if an expert can be jointly agreed upon, to avoid a battle of the experts if the other party retains his or her own expert to support his or her position.
Additionally, if you are seeking to have the other party pay for a portion of the expert’s costs that would have to be done by agreement or court order. Another type of expert people sometimes find helpful is a counselor or therapist if there have been accusations regarding mental health (however, by disclosing these individuals, it may waive your doctor-patient privilege so that is a decision best discussed with your attorney).
In order to have experts testify to the court at a hearing, there are also specific disclosure rules that must be followed, pursuant to the Colorado Rules of Civil Procedure. In addition to listing the individual as a witness on your witness disclosure, the witness must provide a report. For experts that are specifically retained for the case, their report must include, in part, all their findings, conclusions, reasoning, exhibits, fee agreement, cost for testifying, qualifications, past testimony and past qualifications. For experts that are not specifically retained for the case (such as counselors or doctors you were seeing before the case started, appraisers hired just to get a value, not in anticipation of the case, etc.) they must provide a detailed, signed explanation of their options and conclusions, reasoning, exhibits, and their qualifications.
It is always best to confer with an experienced Denver divorce or custody attorney as to which types of experts are needed for your case, which specific experts may be the best fit for your circumstances, whether to retain such experts independently or request appointment for the Court, whether to disclose your independently retained experts, and how to make sure the expert is correctly disclosed as a witness.
The family law attorneys at Plog & Stein, P.C. can help in all aspects of your divorce or custody case, including court preparation and determining what outside opinions may be needed to most effectively litigate your case. To discuss your case with a lawyer from our firm, contact us today.