Expert Witness Testimony in Colorado Divorce and Child Custody and Family Support Cases

It is often necessary to have expert witness testimony in Colorado Divorce, child custody and family support cases. In general, an expert witness may give an opinion while a lay witness can not give an opinion as to anything outside of his or her firsthand knowledge. A lay witness generally testifies only to facts. It is possible to consult on a confidential basis with non-testifying experts to develop legal theories without calling that person as a witness.

The function of an expert witness is to provide information that is beyond the knowledge

and experience of the general population and that will help the court to better understand the issues in the case. An expert witness may testify regarding the ultimate issues of fact, provided, however, that a witness may not be “usurping the function of the court by testifying regarding

the applicable law or legal standard.” Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo. App. 2000). In domestic relations cases, in general the ultimate issues for the court to decide are how to divide property, how to allocate parental responsibilities and how to determine child and spousal support. 

Generally the parties should attempt to select one expert. A joint expert is often a shared expense between the parties. However, either party may retain an individual expert at that party’s expense. A party may also retain an individual rebuttal expert to respond to the report of a joint expert. The legal standard for expert witness testimony is that a qualified expert may testify in the form of an opinion if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue. Disclosure of lay and expert witnesses is required 63 days before an evidentiary hearing. Consultants are not required to be disclosed unless their report is used to form the basis of a testifying expert's opinion. The decision whether to approve a witness as an expert or to hear expert testimony is one for the court. For example, if the court determines that the testimony would not be helpful, it is not required to hear the testimony.

Tip: If the parties do not agree to a joint expert, file a Motion For Determination of Expert with the court requesting an expert, stating the reasons why expert testimony is necessary and providing a copy of the Curriculum Vitae of the proposed expert.

The court is responsible for determining if an expert witness is qualified to testify. In order for an expert to be qualified as a witness, the court must review the qualifications of the witness and determine whether a showing of “knowledge, skill, experience, training, or education” has been sufficiently made to support testimony in the form of an expert opinion. Witness qualifications of the expert are laid through a foundation presented at the beginning of a direct examination of the expert witness.

Expert witness qualifications vary widely. There is no requirement that a witness have a specific degree, training certificate, accreditation, or membership in a professional organization in order to testify on a particular issue. A classic example of this is Mona Lisa Vito’s testimony about vehicle mechanics in the movie My Cousin Vinny (1992). As with all testimonial evidence, a court must find that the expert’s proposed testimony is both relevant under and not unduly prejudicial under CRE 403.

A knowledgeable and experienced divorce and family law attorney can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating. Give yourself the benefit of hiring one. This allows you to focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law is a knowledgeable and experienced attorney who protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30-minute informational consultation or complete our online form.