Background
Ashley Blanks and Tyler Winslow Blanks, parents of a young daughter, litigated custody and visitation after separating. Under a temporary shared-custody arrangement, the circuit court required them to participate in coparenting counseling. Their coparenting therapist later concluded that coparenting was no longer feasible.
The therapist testified at two circuit-court hearings after father subpoenaed and called her as a witness. Mother cross-examined the therapist and had issued a subpoena duces tecum for documents, but did not call the therapist to testify. After awarding father full custody, the circuit court set the therapist’s appearance fee at $1,500 per day and ordered each parent to pay $1,500.
The Court’s Holding
The Court of Appeals reversed the provision requiring mother to pay half of the therapist’s $3,000 appearance fee. Code § 17.1-612 gives a circuit court discretion to set an expert witness’s fee, but requires that the fee be paid by the party in whose behalf the expert testified.
The therapist testified for father because he subpoenaed and called her to advance his case. Mother’s cross-examination did not make the therapist mother’s witness, and the parties’ joint engagement of the therapist for counseling did not alter the statutory allocation of the separate testimony fee. Mother’s document subpoena likewise did not call the therapist to testify on her behalf.
Key Takeaways
- Under Code § 17.1-612, a court may determine the amount of an expert’s appearance fee but not reallocate it contrary to the statute.
- An expert ordinarily testifies for the party who subpoenas and calls the witness.
- Cross-examination and a subpoena duces tecum do not make the opposing party responsible for the expert’s testimony fee.
Why It Matters
The decision distinguishes a jointly retained treatment provider’s counseling charges from the provider’s separate expert-witness appearance fee. In custody litigation, a party who calls a coparenting therapist or other expert to testify generally bears that testimony expense under the statute.
The court remanded for an order allocating the fee to father, including reimbursement to mother if she already paid her $1,500 share.