The Right to Confront Court Appointed Expert Witnesses in Custody Matters

Judges in Louisiana are authorized to refer litigants in custody matters to mental health professionals such as psychologists for an evaluation of their fitness as parents.   Because judges choose the professional he or she is considered the court’s expert not the expert of either party. The opinions of these professionals are not binding on judges but may be considered among other factors. Judges usually defer to their experts’ opinions when deciding custody matters. Judges receive the expert’s opinion in the form of a written report which must also be provided to each party.   Each party also has the right to to cross-examine the expert during the trial of the custody or visitation dispute.   In Barker v. Barker, Louisiana First Circuit Court of Appeal, 2014 CU 0775, Mr. Barker asked the court for a modification of a custody judgment. The judge appointed Dr. Lambert to evaluate the medical, educational, and social issues presented by the parents’ claims. When the case was called for trial, Dr. Lambert had not yet provided the judge with a report and was not present in court. Over the objection of Ms. Barker, the judge heard the case. He told the parties that he would decide their case after he had received Dr. Lambert’s report. Approximately 1 ½ months after the trial, Dr. Lambert delivered his report to the judge. Neither party received a copy of the report or had an opportunity to cross-examine Dr. Lambert. The judge denied Mr. Barker’s request for a custody modification and Mr. Barker appealed. The Court of Appeal reversed the trial judge’s decision and sent the case back for another hearing in order to give each party a chance to read the report and to cross-examine Dr. Lambert. The Barker case reaffirmed the rights of litigants in custody cases to due process in connection with the reports and opinions of court appointed experts. If an expert is appointed in your custody case, make sure you obtain a copy of the report and talk to your lawyer about whether you should insist that the expert appear at trial and be questioned.