Co-authored by Carrie M. Babiasz
Family law is an area of law involving issues and disputes that may arise from familial or other personal relationships, including domestic partnerships, civil unions, and marriages. The area of family law is quite broad, encompassing topics ranging from divorce, child custody and support, child abuse and abduction, division of property, domestic abuse, as well as many others.
Family law disputes tend to be of a deeply personal nature. Consequently, the oft highly charged legal disputes, which can arise when there are acrimonious parties, call for an experienced and knowledgeable family law expert witness. Also, given the subject matter of the cases, a family law expert witness frequently discuss the mental and psychological aspects of individuals. Understanding the different cases in family law, in addition to what type of family law expert witness is brought in, is critical to understanding what issues will be litigated in the future.
Overview
Landmark constitutional cases have involved family law, including Griswold v. Connecticut, which led to the holding that the Constitution protected our right to privacy, even if no such protection was explicitly mentioned in the words of the document itself.1 The case specifically struck down a law that prohibited the use of contraceptives, citing a marital privacy that should be protected. Later the ruling was extended in Eisenstadt v. Baird, another contraception case, to apply to privacy outside of a marriage as well.[2]
Privacy rights were later upheld in other landmark cases as well, such as Roe v. Wade; the case known for legalizing abortion, where the Court’s holding stressed a woman’s fundamental right to autonomy and privacy.[3]
Issues in (and after) marriage
Family law, as previously mentioned, is broad, and includes disputes that occur both in and outside of marriages. Most family law disputes however, or at least those that tend to be litigated, happen after the marriage, and long after the honeymoon phase is over.
Marriage is more than a mere contract. Although it requires consent of two parties, it creates an immutable relationship between the parties. While a marriage may sometimes be referred to as a civil contract, the rights, duties, and obligations established are those of law, not of contract. The legally binding bond of marriage therefore, raises countless issues when the parties to a marriage decide to separate or divorce, especially if children are involved. State statutes for instance, which differ in language but are usually similar in effect, provide that spouses are liable to each other and children under the age of eighteen, and in some cases children who are older than eighteen.
One thing to be settled in a divorce proceeding is the division of marital property. Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage. In most instances, gifts, inheritances, money earned, or property acquired prior to the marriage is the separate property of that spouse. This is true unless it is converted into marital property during the marriage. This may occur through transfer of title, vested interest in property, or improvement through marital funds. Across states, there are two general categories that define marital property; community property and non-community property. Community property is a form of ownership under which each spouse owns a present, equal, undivided interest in each asset.
There are currently nine states that recognize community property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is a separate property state that permits couples to opt into a community property arrangement during the marriage. None of those community property states have identical statutes on the matter. However, essentially all property or income acquired by individuals of a marriage is considered equally owned by both parties for purposes of dividing the property. If a state is not a community property state, there are various rules and schemes that states apply in order to determine what is or isn’t marital property. For instance, various legal options allow a couple to choose when they decide to acquire property together via joint tenancy, tenancy by the entirety, or tenancy-in-common.
Should a couple relocate from a community property to a non-community property state, there are eleven states which have adopted the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA). The act protects couples that move from a community property state from drastic changes in the character and division of their property upon the death of a spouse. Those states include: Connecticut, New York, Oregon, Michigan, Colorado, North Carolina, Virginia, Montana, Arkansas, Florida, and Utah. In many cases, accountants or other financial experts are used to assess financial assets of the parties to insure proper and equitable distribution.
Spousal and child support
Spousal and child support is also a common area of dispute which courts are called on to resolve. As mentioned previously, spouses are bound to support each other and their children and this obligation does not end when the marriage does. Assessment of property and financial assets comes into play, as well, in order to determine amount of support.
Spousal support after a divorce usually comes in the form of alimony. For enforcement issues regarding spousal and child support awards, every jurisdiction in the country has adopted the Uniform Interstate Family Support Act. The act is implemented to determine jurisdiction when there is more than one state involved in modifying or enforcing a support order. The act stipulates that if the place where the order was originally entered holds continuing, exclusive jurisdiction, then only the law of that state can be applied to requests to modify the order of child support.
Custody determinations are an area of litigation that occurs, if the couple involved in a particular dispute has children together. Custody determinations play a large factor in support awards as well as physical visitation awards to either party. Because of the importance of the laws regarding child custody, all fifty states and the District of Columbia have adopted the Uniform Child Custody Act. There was a time when the standard was to award the father sole custody automatically upon divorce. This changed, however, in the twentieth century when courts began to adopt the tender year’s presumption, which awarded custody to the mother.
Nowadays, custody generally is awarded to both parents through joint custody where custody is divided into both legal and physical custody. Joint custody does not translate to equal custody. Rather it dictates that custody co-exists between parents in the best interests of the child(ren). There are only six states that do not recognize the joint custody arrangement in child custody matters.
In most jurisdictions, custody is decided according to a best interest of the child standard. This directs the court to look to many factors including, but not limited to, the stability of the home environment, fitness of the parents or caregivers at issue, wishes of the child or children in light of their age, physical and emotional needs, and harm or risk of harm suffered or likelihood to be suffered.
There are eight states that do not consider the wishes of the children when awarding custody. However, judges will rarely completely ignore children’s wishes in considering custody matters, and in the majority of states that refuse to take into account the child’s wishes, the statute does stipulate that the decision regarding placement of the child must be based on what is in the best interests of the child. Previously, only a few states recognized a grandparent’s desire to visit his or her grandchildren as a right. Currently, all jurisdictions, with the exception of the District of Columbia, recognize visitation rights of grandparents.
To help in determining the factors used to assess the best interests of the child, expert testimony is commonly given by social worker expert witnesses, psychology expert witnesses, or other expert witnesses. They may be better fit to understand the best needs of the child or children at issue. Courts apply the best interest standard in relocation disputes as well, which does not ordinarily delve into questions of abuse or violence, but motives for relocating, fitness of home environment, and the factors discussed above are still under consideration of the court.
Child abuse
Child abuse is a harrowing type of crime that also falls under the category of family law. While most divorce proceedings are somewhat amicable, there are occasions where acrimonious parties are involved in a dispute. In many of those instances, accusations of abuse and violence are exchanged by the parties. Victims of child abuse are in many cases unable to confront or report the perpetrator to authorities. Therefore, the laws surrounding abusive activity contain a protection not often seen in other criminal statutes and in many states.
Third parties with knowledge of, and reasonable cause to believe that abuse has occurred, are under a legal obligation to report the situation to the authorities. This is sometimes seen as controversial considering the notion that many relationships are private and should be protected by privilege. Many laws for instance, in order to foster communication between patient and doctor or client and attorney, protect the content of communication between them by prohibiting disclosure of privileged conversations. Almost every state, however, requires doctors, teachers, day care providers, and law enforcement officers to report child abuse, though there is less uniformity with regard to lawyers, clergy, therapists, or counselors. Many state statutes differ on the definition of what is considered child abuse, and some states including certain sexual abuses. Other states have added pre-natal child abuse to their statutes.4
Litigation issues
Custody disputes are one area of family law that often makes use of family law expert witnesses. Following a divorce, when there are children involved, relocation and custody issues are common. While a majority of custody battles tend to be resolved (somewhat) amicably, those that do not quickly result in accusations from both sides of physical and emotional abuse, manipulation, and/or parental alienation syndrome. Generally, parties in custody disputes rely on psychologists, psychiatrists, and clinical social workers. Medical expert witnesses are sometimes called on as well in cases of abuse or violence, in order to explain to the court the nature and cause of injuries inflicted.
As discussed previously, custody is determined according to a best interest of the child standard. Expert testimony is commonly given by social workers, psychologists, or other experts to aid the court in making that determination. When using expert testimony, attorneys may come up against issues regarding the rules of evidence, which differ across states.
Most states model their evidentiary standards after Federal Rules of Evidence 702. This stipulates that an expert witness, once qualified by knowledge, skill, experience, training, or education, may testify as to their opinion if the testimony is based on sufficient facts and the testimony is the product of reliable principles and methods.5 Additionally, those principles and methods must be reliably applied by the expert witness to the particular facts of the case.6 Forty-two states pattern their own rules of evidence according to FRE 702. They therefore follow the general definitions and limitations for experts used in the federal courts and under that rule. Only nine states, however, have explicitly and fully adopted the holdings of the U.S. Supreme Court in its consideration of FRE 702 requirements.
Rule 702 requires that the expert’s testimony “assist the trier of fact” in resolving the case.7 Many family law cases, especially those dealing with custody, require testimony or evidence from the field of social sciences. When dealing with scientific evidence or opinion, the courts have established factors to consider in determining the admissibility of scientific testimony or evidence.
In a landmark decision, Daubert v. Dow Pharmaceutical, it was held that the requirement to assist the trier of fact will be satisfied only if the opinion has “a valid scientific connection to the pertinent inquiry.”8 An expert’s opinion may fail to be helpful to the fact finder in several ways, for instance, if the opinion strays from the particular facts of the case, or is not sufficiently within the expert’s particular practice or specialized field of knowledge.
The Daubert standard has come to replace the Frye standard. The Frye standard was the dominant test throughout the country until the holding of Daubert was handed down 70 years later.9 Currently, only ten states continue to adhere to the Frye standard including California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. Florida discontinued its adherence to Frye as of July 1, 2013. The majority of states have adopted the more flexible Daubert standard. Although several states refuse to explicitly adopt either Frye or Daubert and choose instead to apply similar standards that acknowledge Daubert.
While courts tend to favor third party expert testimony from a neutral and qualified expert, especially when it comes to children, commentators have suggested that Daubert may present hurdles for admittance of expert testimony, specifically for custody/placement disputes. Courts however, even after Daubert, have continued to admit expert testimony in family law cases. Getting the evidence admitted, however, may take additional steps. Based on recent case law throughout several jurisdictions, it seems that lawyers seeking to admit such testimony should elicit from their witnesses, in addition to the expert’s credentials, the general principles of their field of expertise. This includes the methods they used in the case at issue, the relationship of these methods to the general principles of their field, and the general acceptance of these methods by other professionals in the expert’s field.
Application of FRE 702
Applying FRE 702, the court in Surman v. Surman, a case involving a custody dispute with allegations of abuse perpetrated by the father, held that in order for expert testimony to be admitted, the witness must in fact be considered an expert. Additionally, there must be evidence that requires the analysis of an expert and the expert’s knowledge must be in a particular area of knowledge or expertise beyond that of a layperson.10
Psychological and physical evaluations of the child or children at issue in any given case is rarely, if ever, common knowledge to a layperson or to a judge, so expert opinions are generally taken into account. Determining who is, or is not, an expert is where most issues arise. In determining an expert’s designation, courts often look to an expert’s certifications, education, length of practice, and past experience as an expert witness. These factors are drawn from FRE 702, which stipulates that expert witnesses must be qualified as an expert by knowledge, skill, experience, training, or education. In light of the factors considered by courts in determining the best interest of the child in custody and relocation disputes, social work expert witnesses and counseling expert witnesses seemed to gain favor in family law cases.
In Minter v Minter, the court concluded that expert testimony by a professional counselor and social worker with a doctorate in sociology was useful to the trier of fact.11 Similarly, in Smith v Tierney, it was held that a counselor with a degree in social work was an appropriate expert witness.12
There have been limits, however, to admissible testimony by social workers in cases like Barth v Barth, where an appellate court overruled a trial court admission of testimony by a social worker where the social worker had not seen the children involved in the case.13 In many instances, however, social workers who have seen and worked with the children or parties involved are generally considered to be viable experts, whose testimony is admissible. Pediatricians have also been qualified as witnesses. In People v Houston, for instance, a pediatrician’s testimony was admissible to establish the possibility of rape without physical injury.14
Types of experts commonly used
Psychology Expert Witness
In custody evaluations, psychologists are often called on as experts to perform both fitness and custody evaluations. Often, psychologists will be expected to evaluate the parties’ relationships with the child, or children, and each other. In such cases, the psychologist would then make a recommendation to the court, using his or her findings, as to which party should retain or gain custody of the children based on the consideration of the child’s best interests. This process can be very time consuming and expensive.
A psychologist may also assess fitness of the parents for similar custodial purposes. They assess the mental health and parenting capabilities of the parties in order to determine whether a person is fit to be custodian to the child or children at issue. Fitness evaluations generally require less time and money than do custodial evolutions. In some cases, a psychologist may also be called to confront or dispute the testimony of an opposing expert.
In order for a psychologist to become a recognized and credible expert witness, one must complete the education required to become a psychologist, which includes an undergraduate degree and a subsequent doctorate level degree in the field of psychology. Experience is also taken into account, as competence in performing psychological assessments of children, adults, and families is essentially required. Education, training, experience, and/or supervision specifically in the areas of child and family development, child and family psychopathology, and the impact of divorce on children help to prepare the psychologist to participate competently in child custody evaluations.
A psychologist is also expected to become familiar with applicable legal standards and procedures governing divorce and custody disputes in his or her state or jurisdiction. One item to note, however, is that a psychologist should avoid conducting a custody evaluation in a case where the psychologist also served as therapist for the child or other parties involved in the dispute.
Psychiatry Expert Witness
Psychiatrists are generally used for custody and fitness evaluations. The expert testimony given by a psychiatry expert witness is similar to that of a psychology expert witness. One area that tends to serve as a distinction is assessment of a parent’s health because child custody battles may include questions about a parent’s chemical dependency, sexual proclivities, or psychiatric illness.
Additionally, some cases require an evaluation of the parent’s health as well as the needs of the children. A psychiatrist should be familiar with the particular family’s dynamic, as custody evaluations turn on a child’s future demands, needs, and best interests. A psychiatrist should also have a firm understanding of the particular household and be knowledgeable of the children’s needs on a personal level. In order to serve as a reliable and relevant psychiatry expert witness, a psychiatrist must have an undergraduate degree and a subsequent medical degree before completing an additional four years of residency in the mental health field. Psychiatrists serving as expert witnesses should specialize or spend additional training specializing in areas of child and adolescent psychiatry.
Social Work Expert Witness
Again there is overlap in the exert testimony sought from social workers, psychiatrists, and psychologists. Frequently, social work expert witnesses will testify in custody and visitation evaluations, termination for parental rights, sexual abuse of a child, and domestic violence. There are two main types of social workers: direct-service social workers, who help people, solve and cope with problems in their everyday lives, and clinical social workers. The latter diagnose and treat mental, behavioral, and emotional issues. A bachelor’s degree is required for most direct-service social work positions; some positions and settings require a master’s degree. Clinical social workers must have a master’s degree in mental health studies. As with all expert witnesses in the field, a reputation for ethical practice is of utmost importance.
Medical Expert Witness
Pediatricians may be qualified as expert witnesses. In People v Houston, for instance, a pediatrician’s testimony was admissible to establish the possibility of rape without physical injury.15 The same overlap that occurs with expert testimony in psychiatry, psychology, or social work also occurs with pediatrics.
Pediatricians, much like psychiatrists, are medical doctors, with undergraduate and doctorate degrees. Physicians who appear as medical expert witnesses in custody disputes should have knowledge in child-specific areas, such as pediatrics. Additionally, they should have spent their residency dealing specifically with pediatric care. Unlike the other experts that are usually relied on for custody and fitness evaluations, physicians are called on to assess physical well-being, or lack thereof, of the child in past or current state, not future mental harm or effects that may or not may not result from physical harm. Additionally, some courts have utilized emergency medicine expert witnesses, general surgery expert witnesses, and neurology expert witnesses. These witnesses can identify specific aspects of possible child abuse or other elements related to a minor’s well-being.
Forensic Accounting Expert Witness
Property division between the spouses is an important issue in divorce proceedings. Determining the correct and proper value of assets and properties of the spouses is common in order to ensure a fair and equitable division of assets. A common example in litigation would be an accountant with specific knowledge of the formulas utilized to calculate the present value of various retirement interests. Many valuation questions arise in divorce cases involving pension plans, partnerships, other closely held businesses or corporations, and jewelry and other collectible items acquired during a marriage.
A forensic accounting expert witness may be needed to assess the distinctive nature and value of separate properties of the spouses. For instance, accountants, surveyors, real estate brokers, loan evaluators, consultants, or employees of banks or financial institutions may be considered experts who can assist the jury in understanding complex financial terms. Financial expert witnesses may break matters into simple language for easy understanding by the jury. When divorce proceedings involve complex property issues, the role of an expert witness can be critical in helping to determine the value of the parties’ assets.
As with most specialties, experience is key. Certified public accountants generally serve as viable expert witnesses in divorce proceedings. One may also become a divorce financial planner. A financial planner must complete course work and examinations, as well as maintain ongoing continuing education. Many financial planners are certified as such by the Institute for Divorce Financial Analysts or have extensive, hands-on experience. To become a CPA, one must take thirty credit hours, usually in accounting, but these requirements vary by jurisdictional requirements.
[1] Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
[2] Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972).
[3] Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
[4] South Dakota, Wisconsin and, Texas
[5] Pub. L. 93–595, §1, Jan. 2, 1975.
[6] Id.
[7] Id.
[8] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
[9] Frye v. United States, 293 F. 1013, 1014 (App. D.C. Dec. 03, 1923).
[10] Surman v. Surman, 277 Mich. App. 287, 745 N.W.2d 802 (2007).
[11] Minter v. Minter, 11 Misc. 3d 1081(A), 819 N.Y.S.2d 849 (Fam. Ct. 2006).
[12] Smith v. Tierney, 2004-2482 (La. App. 1 Cir. 2/16/05), 906 So. 2d 586.
[13] Barth v. Barth, 2010-Ohio-425 (Ohio Ct. App. Feb. 4, 2010).
[14] People v. Houston, 250 A.D.2d 535, 673 N.Y.S.2d 425 (1998).
[15]People v. Houston, 250 A.D.2d 535, 673 N.Y.S.2d 425 (1998).
