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Expert Witnesses and Child Custody

AMAN V. NICHOLSON, 2023-NCCOA-________ (2023). 

  1. Facts:  Plaintiff and Defendant are parents of a minor child. They separated in fall of 2019. Plaintiff filed for custody, and a temporary order was entered. The temporary order granted joint legal custody (decision making) and primary physical custody to the Plaintiff, visitation to Defendant. It further required each party to obtain and exchange psychological evaluations and to attend counseling. Eventually, the custody matter was set for trial in spring of 2021. On the first day of trial, Defendant provided a list of three expert witnesses that he planned on calling to testify. Plaintiff objected and wanted to exclude the expert testimony. The trial court agreed, and entered an Order that excluded Defendant’s three expert witnesses from testifying. Defendant appealed. 


  1. Issue:  Did the trial court err in excluding Defendant’s expert witnesses? 


  1. Holding:  No. 


  1. Rationale:  Unless there is some discovery plan, stipulation, court order, or discovery that would otherwise set time limits for disclosure of expert witnesses, the General Statutes have no proscribed deadline disclose expert witnesses. However, the case law has clarified that the Rules of Civil Procedure require advanced disclosure of expert witnesses that are planned to testify at trial. So how much advance disclosure is required? The crux of the rule is to prevent one party from attaining an unfair advantage at trial. Here, two of the expert witnesses on the list provided by Defendant were only disclosed on the first day of trial. This was clearly going to disadvantage the Plaintiff. Additionally, the trial court determined that a less severe remedy, such as continuing the trial, would not be advisable since the custody had been pending since 2019 and needed resolution. The standard of review on discovery sanctions such as this is to determine whether there was an abuse of discretion. Given the reasoning of the trial court, there was a proper exercise of discretion and the decision to exclude was proper.