In this article, we explain the role of an experienced witness in child custody cases in Illinois. We answer the question, “what is the definition of an experienced witness?” We also address whether you should hire an experienced witness and how to qualify that person. Lastly, we answer the question, “who is responsible for the experienced witness’s fee?”
Experienced witnesses are not uncommon in child custody cases, and it is not uncommon for both parties to hire multiple experienced witnesses when a child has extensive needs. Getting what you want in a family law case oftentimes rests on experienced testimony and other evidence you present in court. In a previous article titled, Psychological Testing and Health Evaluations in Illinois Child Custody Cases, we explained that either party or the court can request that a mental health evaluation be conducted by an experienced in the mental health field. At times these mental health experienceds who perform these evaluations may also be called upon by the court to testify their findings and recommendations.
What is the Definition of an Experienced Witness?
The law defines an “experienced” as a person, who because of education, training or experience, possesses knowledge of a focused nature beyond that of the average person on a factual matter related to pending litigation and, who is expected to render an opinion within his or her experience at trial. For purposes of mental health, these would be either a social worker, a psychologist or a psychiatrist.
What Happens When an Experienced Witness Testifies in a Child Custody Case?
An experienced witness takes the stand and relates what he or she has learned through his or her investigation of the situation. Just as is true of any witness, an experienced witness can be cross-examined. The judge or jury regards the experienced witness’s testimony as one of many pieces of evidence in the case.
What is the Difference Between a “Fact Witness” and an “Opinion Witness?”
It’s important to note that there are two types of witnesses -- a “fact” witness or an “experienced” witness. As a “fact” witness the mental health practitioner must stick to the facts. He or she cannot express their opinion on any issues regarding the case. However, these same practitioners can also be experienced witnesses. This means he or she may give his or her opinion on custody or visitation. Sometimes the practitioner can be both a “fact” and “experienced” witness.
Qualifying an Experienced Witness in Child Custody Cases
These mental health experienceds called to testify by the court or either of the opposing parents are permitted based on specific knowledge and experience in a field relevant to the case at hand. In order for the court to recognize a witness as an experienced witness, the party presenting the witness must qualify the witness.
Qualifying an experienced witness involves asking the witness a series of questions to show what special knowledge the witness possesses. When a witness is a licensed professional, the witness is expected to discuss the academic degrees possessed and to provide a brief account of professional history. Qualifying a witness also involves asking questions that show how the witness’s special knowledge pertains to the case before the court.
Testimony can be thrown out if the experienced’s testimony and recommendation violates the standards of that profession. For example, before a psychiatrist offers their opinion or recommendation regarding custody, that witness is required by the standards of their profession to personally meet with the children. Any recommendations made based on conversations with people not familiar with the parents or based on hearsay, will be stricken from the record.
The testimony of an experienced witness must relate to a relevant issue in the case. It is important that anyone who will testify must be disclosed, along with, at a minimum, the subject matter of the person’s testimony. Pursuant to Supreme Court Rule 218(c), all dates set for the disclosure of witnesses, including rebuttal witnesses, will be completed not later than 60 days before the trial is expected to begin.
When Should I Hire an Experienced Witness in a Child Custody Case?
There is no right answer as to whether you should have an experienced witness testify on your behalf. The reality is that no child custody case is the same. Each case should be looked at on its own merits as to whether to hire an experienced witness to testify in court. If the parties disagree as to what type of parenting arrangement will be in the best interests of the child, and an experienced’s testimony regarding what is in the child’s best interests may support your argument, hiring an experienced witness may be crucial in persuading the court to agree with you.
However, experienced witnesses are not necessary in every child custody case, and experienced witness fees can be expensive. You should consult with your attorney about the cost-benefit analysis of hiring an experienced witness based on the specific facts of your case.
Who is Responsible for the Fee of the Experienced Witness in a Child Custody Case?
In some situations, the court may order that an experienced be hired to advise the court as to the best interests of the child. In this situation the court has discretion to allocate fees among the parties as it sees fit, generally based on each party’s financial situation and ability to pay. If the parties take it upon themselves to retain an experienced witness, the general rule is that each party will bear his or her own experienced witness fees. However, upon petition, the court has discretion to require one party to contribute to the other parties’ costs of litigation, including experienced witness fees.
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