By Mag. Kimberly Dean Mattingly, Marion Superior Court
A reminder from the Spring Judicial Conference: A custody evaluation that is ordered by the Court, after evidence is submitted on the petition, is automatically admissible despite containing hearsay. See I.C. 31-17-2-12. Note the bold type; a hearing must be conducted before the report is ordered in order for it to be automatically admitted. If your client hires his or her own expert and proceeds as if under T.R. 35, you may well encounter a hearsay objection when you offer the report. Your expert will be able to testify to his/her opinion, but you may have to redact the hearsay from the written report to get it in. Of course, stipulating to the report’s admissibility in advance is one way around this potential roadblock.
Most of us in Marion County are reluctant to provide panels for striking (such as those for choosing a mediator). We assume that if you are proceeding under T.R. 35 that you’ll select your own expert. And if you are proceeding under the statute, you’ll need a hearing and we can chat about choosing at expert at that time, as well as apportioning the cost subject to a final hearing.
Stay tuned for a new tip next week!
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