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January 15, 2020 Feature

The Use of Experts in Custody Cases

Margaret “Pegi” Price

Why Special Needs Cases Are Different from Standard Custody Cases

Children with special needs often need to have their custody and visitation plans tailored to address the individual child’s issues. For one child, the unique factor might be the child’s need for receiving nutrition through tube feeding because of a neurological, pulmonary, cardiac, or other condition. Another child might struggle with transitions and need an atypical custody and visitation schedule. Sometimes, a sibling without special needs might get lost in the shuffle and need one-on-one time scheduled with each parent.

The living expenses for a child with special needs can be much higher than for a typical child. Standard child support guidelines and charts seldom address these higher costs adequately. The charts that include a line for regular, predictable extraordinary costs usually ignore the fact that many of the increased expenses vary from one month to the next because medical conditions do not adhere to a schedule.

Custody Issues in Special Needs Cases

You will not necessarily have to make changes from the norm in all of these areas, but you should analyze each of these factors to determine whether deviation from the standard is necessary.

  • Physical custody
  • Legal custody
  • Decision-making about education, medical treatments, and therapy
  • Visitation
  • Parenting time
  • Strategies to avoid and resolve future conflicts between the parents

The Need to Use Experts When Asking for Deviation from the Custody Norm

Our legal system usually changes very slowly. Judges are, understandably, reticent to issue rulings that do not follow precedent. If we want judges to deviate from the norm, we need to give them authoritative evidence to point to when such rulings get taken up on appeal. Since the niche area of special needs and divorce is relatively new on the legal landscape, we have very little precedent, so we need to get the testimony and reports of experts into the record at the trial court level.

Lawyers and Judges Must Understand the Underlying Medical Condition

You cannot adequately address the child’s unique needs if you do not have at least a basic understanding of his or her underlying medical condition. Lawyers have to educate themselves on the medical issues relevant to the particular case. For example, when you are handling a case that involves a child with severe kidney disease, you should read authoritative medical resources online, such as those of the Mayo Clinic, Cleveland Clinic, and the National Institutes of Health, to learn about:

  • the child’s medical issues,
  • his or her prognosis,
  • common complications of the disease, and
  • how the medical condition can affect the child’s life now and in the future.

We then have to educate the judges on the specific medical condition. As you know, however, it is important not to bore the judge.

Practice Tip

  • Prepare a “Top 10 Things You Need to Know About [the medical condition]” using a bullet-point format. Each bullet point should no more than 100 words.
  • Attach a more detailed summary of information about the medical condition, anticipating questions the judge might have.
  • Attach printouts of information about the condition from the authoritative medical references.

Make it easy for the judge to quickly find the needed information to know what modifications from the standard parenting plan and child support chart the child needs. The judge should be able to reach the correct conclusion from the medical information packet alone, without having to read your arguments about what the child needs. It is much more powerful if the judge realizes the child’s needs before you present your client’s position. For each modification that the child needs, provide two or three scholarly sources that support the child’s need for variance from the norm.

Expert Witnesses Can Educate About Diagnosis, Prognosis, and Needed Modifications

Ask your expert witness about the most important things the judge needs to know to meet the needs of the child. Make sure that your cheat sheets include this information and that you give your expert witness the opportunity to provide testimony about these points in court. Be sure that the expert’s testimony and report create a link between the requested variation from the norm and the child’s special need.

Judges often ask expert witnesses questions about the medical condition during trial. When this happens, adjust your line of questions so that the expert can talk about whatever interests the judge. After the judge is satisfied, circle back to your list of essential points the expert needs to make to cover every accommodation the child needs in the terms of the divorce.

In some cases, you might want to hire multiple experts. For example, a child with intellectual impairment and a severe seizure disorder might need three expert witnesses:

  • a pediatric developmental specialist to testify about the child’s intellectual impairment;
  • a neurologist to talk about the seizure disorder; and
  • a rehabilitative or occupational financial expert to explain the child’s increased financial needs, both now and in the future.

Every case is different, and there is little guidance in this developing area of the law. You will have to create your own roadmap in many of these divorces.

Does this Case Need to Be Treated Differently from a Standard Divorce Case? How to Tell

Clients don’t always tell their lawyers about a child’s special needs when going through divorce. People tend to think of the divorce as the breakdown of a marriage that primarily involves the spouses. Dealing with financial aspects such as distribution of assets and debts and deciding what to do about the children can seem like secondary fallout.

You should ask about medical conditions, psychiatric issues, learning disorders, and related topics as part of your initial intake questionnaire for all divorce cases. Ask if any of the children have IEPs (Individual Education Plans) or other accommodations at school. When you find out about anything that might signal a special need, follow up until you either satisfy yourself that no modifications are necessary or that you need to explore how a medical condition affects the child and the family.

Suggested questions for Initial Intake Forms include the following.

  • Does any child or either parent have a diagnosis of any medical condition, whether it is a physical or mental health issue?
  • Has any child or either parent experienced a severe health crisis, whether it is of a physical or mental health nature?
  • Has any child or parent been an inpatient at a hospital or other healthcare facility?
  • Do any of the parents or children take any prescription drugs?
  • Do any of the children receive accommodations at school?

It is vital to follow up on any “Yes” responses to these or similar questions. Let’s say that one of the three children in the family has cerebral palsy. Cerebral palsy (CP) can have a wide range of severity. One person with CP might be able to walk without mobility equipment, albeit the movements might be a little atypical, but not need any accommodations. A person with severe CP, however, might not be able to stand or walk without assistance and might need lifelong care.

Get enough information from your client that you would be able to describe to the judge what daily life and school are like for the child. Find out the child’s schedule of therapy and medical treatments. If the custody and visitation schedule ignores these things, the child could lose access to needed services. Know the child’s physical needs, including needs for equipment, and whether the physical set-up in each parent’s new living arrangements can accommodate those needs.

For example, a child with mobility issues would have to spend the entire time in bed if a parent’s house does not have the necessary lift equipment to get the child in and out of bed to the wheelchair. The child would have to wear diapers and be unable to participate in family activities while bedbound. He or she would be at higher risk for bedsores and respiratory infections such as pneumonia from spending days on end stuck in bed. This is not an acceptable arrangement, but it is an example of what can happen if the lawyers do not understand a disabled child’s needs.

Getting an Expert

When you discover a significant special need, get an expert witness who can steer you in the right direction for the individual child. Do not assume that any given condition affects all children in the same way or at the same level. Have the expert review the child’s medical and school records and make suggestions about the child’s unique needs.

Credentials matter. Your expert witness needs a CV with credentials that make him or her look like a rock star to the judge. An expert with the highest level of education and expertise will make it less likely that your case will be appealed or, if it is appealed, less likely to be reversed because of the expert’s testimony. Be sure to have the expert’s CV admitted into evidence at trial, and have the expert hit some of the highlights before the judge cuts him or her off.

If you have a choice between an expert witness with a bachelor’s degree or one with a Ph.D. and all other things are equal, go with the Ph.D. Always interview potential expert witnesses in person before hiring them. Some geniuses make terrible witnesses, while others can handle a barrage of tough questions.

You do not want your witness to hurt your case, so caution the expert against using sarcasm when testifying. The record will say the opposite of what you need it to say if that happens.

Go with your instincts about whether the expert is believable. Be wary of potential expert witnesses who are so passionate about a particular cause that they are not objective.

Suggestions for Parenting Plans

Get your hands on as many samples of parenting plans and other relevant documents as you can find from cases that involved special needs. When building your samples file for your office, realize that any given child might have multiple issues that can impact a parenting plan. For example, a child with autism might also have sensory integration dysfunction and dyspraxia. A child with diabetes might have vision loss and neuropathy. Your expert can help you to make sure that you are covering all the bases.

How School and Medical Records Can Help Your Expert Witness

Family law cases are notorious for “he said, she said” allegations. Judges learn to expect people to slant the facts in their favor and sometimes flat out lie. And as we all know, unfortunately, some experts are “for sale.” In cases in which the judge questions the objectivity of the experts, the school and medical records can provide support for your expert’s opinion.

Let’s say that the other parent’s expert testifies that the child does not need any special treatment and that there is no need to deviate from the norm in the parenting plan or child support. It can be powerful if you introduce the school records that show the opposite to be true.

School districts do not have any incentive to exaggerate the child’s condition. The more severe the child’s needs are, the more services the school district must provide for the child to get an appropriate education. It is best to use records that were created for a different purpose, unrelated to the divorce. For example, use the IEP report and underlying evaluations to show the child’s actual needs.

Sometimes people challenge medical records, claiming that the doctor is being self-serving when stating that the child has significant needs. One way around this argument is to use evaluations from healthcare professionals affiliated with educational institutions, such as teaching hospitals, rather than doctors in private practice.


It is easy to get overwhelmed when handling a case that involves a child with special needs, but after you have worked on several cases like this, you will become more familiar with their unique characteristics. Talking with other family law attorneys can help you navigate these challenging but rewarding cases.

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Margaret “Pegi” Price is a professor and the Academic Program Director for the master’s degree in Homeland Security and Emergency Management in the School of Professional Studies at National University in Portersville, CA. She practiced law for more than twenty-five years in a civil trial practice and as a prosecutor. She has served as an expert witness or consultant in more than seventy-five lawsuits involving special needs, and she is the author of The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases, (Am. Bar Ass’n 2009); Divorce and the Special Needs Child: A Guide for Parents (Jessica Kingsley Publishers 2010); and other books on autism and special needs, as well as two legal thriller novels.