Medical and Mental Health Expert Witness Testimony in Colorado Divorce and Child Custody 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.

There are various types of expert witnesses utilized in domestic relations cases. For example, among others, there are Child and Family Investigators and Parental Responsibilities Evaluators, medical and mental health professionals, vocational evaluators, attorney's fees and costs experts, residential and commercial real estate valuators, and business valuators. Following are the various types of expert witnesses common in the medical and mental health fields and their purpose.

Child and family investigators (CFIs) are often called to state opinions on parenting matters to include parenting time and decision-making responsibility. A child and family investigator (CFI) can be appointed by a court to investigate and opine on parenting matters. C.R.S. § 14-10-116.5(2). CFIs are usually attorneys or mental health professionals, however they can be any person who has attended a 40-hour training course offered by the state as well as subsequent continuing education requirements. They can be appointed in both pre and post-decree cases. They submit written reports to the court and may testify as well if called by the court or a party. The CFI is a neutral investigator and does not represent either parent or the children. If a child does express information relevant to parenting time, the CFI must disclose the child's wishes.

CFI reports are often helpful to the court as the investigator is neutral, whereas the parties often take self-interested, adversarial positions. Attorneys and parties can speak with CFIs before moving to appoint to assess qualifications and any investigative and parenting philosophies. The CFI provides a summary of personal and documentary information sources and the basis for recommendations. CFIs interview the parents and relevant third parties, review relevant documents, and conduct home visits with each parent and the children. The reports are generally limited to the original scope defined by the court, however in practice they may often expand beyond that if the CFI uncovers additional relevant information in the course of the investigation. Judicial officers favor receiving as much relevant information as possible to aid in decision making.

CFIs tend to be appointed in cases where there are allegations of high-conflict issues such as domestic violence or drug abuse. It is important to note that a CFI does not usurp or duplicate the investigations of other professionals. For example, in cases where a CFI uncovers evidence of child abuse, the CFI would make a referral to the Department of Human Services (DHS) and typically the CFI's investigation would be held in abeyance until DHS issued a report. The CFI would then consider the report findings or absence of a finding of abuse in his or her own report. The CFI is not bound by the findings of other professionals, but considers them, and can offer a differing opinion. 

Mental health professionals often testify in domestic relations proceedings. For example, evidence of domestic abuse uncovered in the course of counseling is relevant to parenting. Of course, the issue of the impact on continued counseling must be considered and consent must be given for a counselor to testify absent a court order. Children age 12 or older in Colorado hold the privilege to consent to release of counseling information. For children younger than age 12, the parents hold the privilege and they must consent to the release of information. The level of experience, training, and areas of expertise are different for various mental health professionals.

• A Psychiatrist is a licensed medical doctor.
• A Psychologist is a licensed professional who holds a doctorate degree with a major in psychology or an equivalent field and who has had at least one year of post-doctoral experience practicing psychology under supervision.
• A Licensed Social Worker has a master’s degree from a graduate school of social work.
• A Licensed Clinical Social Worker (LCSW) has a master’s or doctorate degree from a graduate school of social work and has practiced social work for at least two years under the supervision of a Licensed Clinical Social Worker.
• A Marriage and Family Therapist (MFT) provides professional marriage and family therapy services. They are required to be licensed by the State Board of Marriage and Family Therapist Examiners, a part of the Department of Regulatory Agencies. Full licensure as an LMFT requires graduate education, examination, and supervised practice. 
• A Licensed Professional Counselor holds a master’s or doctoral degree in professional counseling from an accredited school or college. The degree program includes a practicum or internship. The counselor has at least two years of post-graduate practice or one year of postdoctoral practice under supervision.
• A Psychotherapist is often a Licensed Clinical Social Worker or Social Worker. However, Colorado also allows unlicensed psychotherapists as long as the person identifies him or herself as such and registers with the Department of Regulatory Agencies.

Common areas of mental health testimony in domestic relations cases often involve attention deficit and hyperactivity disorder, oppositional/defiant behavior, physical and emotional abuse, age-appropriate behavior, developmental delays and special educational requirements. Courts have the authority to order evaluations by county Department of Human Services Offices in parenting matters as well. C.R.S. § 14-10-127(1)(a)(I). This may be appropriate in situations where there are allegations of child abuse, where state action may be appropriate. 

Medical doctors often testify as well. For example, they may testify as to health conditions suffered by a party that impact an ability to work. Or they may testify as to medical conditions of children that require treatment in cases where the parents dispute treatment. Following is an example of a direct examination of a pediatric dentist in a matter where the parents disagreed about whether the child should receive dental care for tooth decay.

• Please state your name for the record.
• What is your profession?
• Where are you employed?
• How long have you been employed there?
• Describe your educational background.
• Do you hold any professional licenses?
• What are they?
• Do you have a specialty in your field?
• Do you belong to any professional organizations?
• What are they?
• Besides your education, have you received any professional training?
  • What?
  • When?
  • Where?
• I move to qualify the witness as an expert in the field of dentistry.
• (The foundation has now been laid and if the court allows qualification, the attorney may go into the substantive questions of the case).
• Do you know Insert name of child?
• How do you know him/her?
• Have you met with him/her for the purposes of medical diagnosis or treatment?
• Have you conducted a dental examination of him/her?
• What did you discover?
• Did you make a recommendation?
• Are you aware of whether the parents agreed to treatment?
• Are you aware of the reason why the child did not receive treatment? (This would be a statement made for the purpose of medical diagnosis or treatment which is a hearsay exception)
• Is the recommended procedure necessary?
• Why?
• What are the risks of a failure to receive treatment?
• I am showing you what has been marked as Exhibit A/1.
• Are these copies of Child’s dental progress reports from your office?
• Do they include your diagnosis?
• And do they include your treatment recommendation?

I move to admit Exhibit A/1.

There are a few rules of evidence implicated in the prior direct examination oriented towards admissibility of out of court statements of a child with regards to the dental treatment, which are hearsay. They are: CRE 803(4) - Statements for purposes of medical diagnosis or treatment and CRE 803(3) - Then existing mental, emotional, or physical condition. 

CRE 803(4) - Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 

(Federal Rule Identical.)

CRE 803(3) - Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

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.