Florida Family Law Rule of Procedure 12.360 provides that a Court can order a person to submit to an examination by an expert involving a mental or physical condition, employability or vocational testing, or genetic DNA testing. A court also has discretion to order other types of testing.
Expert witnesses can make a crucial difference in family law cases. Experts can collect and analyze data and, unlike non-experts, give their opinion to the Court. Experts can be a good way to get facts before the Court that would be time consuming and expensive to prove to the Court without the expert.
Florida Family Law Rule of Procedure 12.363 allows the Court to appoint an expert to examine, evaluate, test or interview a minor child. In child custody cases a psychologist can also conduct interviews of the family members and collect school, doctor, police and other records. The expert can then testify before the Court about their findings and recommendations. Courts are very reluctant to allow young children to testify in a custody case. However, an expert can testify about what a child has said is going on inside the family, and a child’s preference regarding timesharing.
The Florida Supreme Court enacted Florida Family Law Rule of Procedure 12.363(c) to mitigate the problem of one parent in a case secretly taking a child to be evaluated without informing the other parent. The Rule provides that an expert who examines a child, but is not appointed by the Court, can only testify if the Court determines good cause exists to allow the testimony. In determining good cause, the Court is required to consider the fact that only one parent knew of the testing or evaluation.
Florida Statute 61.20 and Florida Family Law Rule of Procedure 12.364 governs the appointment and duties of an expert who will conduct a social investigation.
A Court can appoint an expert to conduct a social investigation if time sharing, parental responsibility, ultimate decision making, or a parenting plan for a minor child is in issue. The Social investigation can be conducted by a psychologist, a clinical social worker, a marriage or family therapist, a mental health counselor, or a child placing agency. To testify regarding their report the social investigator must qualify as an expert witness under Florida Statutes 90.702.
The social investigator has broad authority to investigate all pertinent details relating to the child and each parent. The investigator is trying to determine what is in the best interests of the child based upon anything that may affect the welfare and interest of the child. The social investigator can look at any circumstances that come to light but they are required to consider the statutory factors listed in Florida Statute 61.13.
The social investigator must prepare a report that includes the facts they have found and a recommendation regarding a parenting plan. The Court will consider the report, along with other evidence when making a ruling.
A vocational expert can be crucial in convincing a Court to impute income to a spouse who can work but refuses safe use of remedies. DNA testing can now conclusively determine paternity of a child and is relatively inexpensive and quick. A forensic accountant can help sort through a complex marital estate.
A tax expert can testify about the impact of taxes on an alimony award. Alimony is a tax deduction for the spouse who pays and is subject to income taxes for the receiving spouse. A tax expert can explain to the Judge the exact tax consequences in a particular case. This can lead to a higher alimony award.
The Attorneys at Mario, Gunde, Peters, Rhoden & Kelley have vast experience using many different types of experts. Of course when the Court or the other side is using an expert, we know how to attack the expert’s findings. Your case may contain issues that will be addressed by an expert. Make sure you have an attorney experienced in complex litigation fighting on your side. Call today for a free consultation.