Section 21.3 Using an Expert
Library | Family Law Deskbook and 2014 Supp |
2. (§21.3) Using an Expert
For custody cases involving allegations of child abuse and neglect, see §§21.6 and 21.7 below.
In child support cases and modification of child support cases there are times when an expert’s testimony is necessary. For instance, in Martz v. Martz, 323 S.W.3d 53 (Mo. App. S.D. 2010), the Southern District of the court of appeals upheld the trial court’s ruling in a case involving modification of child support. Specifically, the Southern District upheld the trial court’s ruling that the mother had not met her burden of proof when she failed to offer any expert testimony that the over $67,000 she alleges their son incurred in medical expenses for drug treatment and related expenses were both reasonable and medically necessary. The couple had been ordered in their dissolution decree to split all decretory medical expenses.
When the trial court in another case entered a ruling requiring the minor child to spend one academic school year with the mother and the next with the father, in different states no less, the Southern District reversed the trial court, finding that it had not heard enough testimony on whether the court’s creative approach to having a child switch schools every other year was really in the child’s best interests. See Carlton v. Walters, 294 S.W.3d 513 (Mo. App. S.D. 2009).
Experts and lay witnesses were used to show a mother had alienated the oldest children’s affections from their father in Noland-Vance v. Vance, 321 S.W.3d 398 (Mo. App. S.D. 2010). In addition to accepting the concept of parental alienation of a child’s affection for the other parent, the court upheld the trial court’s decision to split up the children, with the oldest three going to the mother because they had been alienated from the father beyond help, and the youngest to the father, because they still had a chance to have a relationship with their father. Though a sad, extremely high-conflict case, Noland-Vance is an important one that does an excellent job of analyzing the trial court’s custody decision in relationship to the relevant statute. In L.J.S. v. F.R.S., 247 S.W.3d 921, 926 (Mo. App. S.D. 2008), the court also expresses concern regarding the issue of parental alienation syndrome.
Most attorneys understand the importance of winning a case on the trial court level. But in a custody case, this is even more important. “[G]reater deference is given to the determination of the trial court in child custody matters than in other cases.” Abbott v. Perez, 140 S.W.3d 283, 291 (Mo. App. E.D. 2004) (quoting Brown v. Brown, 19 S.W.3d 717, 720 (Mo. App. W.D. 2000)); L.J.S., 247 S.W.3d at 925.
How can one party prevail when that party is convinced that the other spouse is less suitable or even unfit to have custody? When properly offered, expert testimony can make a big difference in a child custody case. In Jones v. Jones, 902 S.W.2d 363 (Mo. App. E.D. 1995), the father filed a motion to modify the custody of his son, asking that primary custody be transferred from the mother to the father. A speech pathologist retained by the father testified that the child’s mother had failed to obtain proper treatment of the son’s moderate to severe speech disorder. The court cited the mother’s failure to obtain proper treatment for the child as one of its grounds for sustaining the father’s motion to modify, and it transferred custody of the child to the father.
An attorney representing a client with prior substance abuse problems or a history of mental illness can use
an expert to show the court that custody should not necessarily be awarded to the other parent. In Downey v. Downey, 696 S.W.2d 336 (Mo. App. S.D. 1985), a mother’s attempted suicide was not sufficient to create a reasonable...
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