Expert witness was called to testify on her counseling sessions with the child. Her testimony did not qualify to meet standards under Rule 702.
Facts: This case, (Berenice Vega Ostos v. Jose Alfredo Vega – United States District Court for the Northern District of Texas – Dallas Division – June 10, 2015) involving the child custody battle of a divorced couple, will of interest to child custody expert witnesses. The respondent (Mr. Vega) is accused of wrongfully removing the child (J.G.V.) from his ex-wife’s custody. The petitioner (Ms. Ostos) maintains that Mr. Vega removed J.G.V from Mexico into the United States in violation of the Hague Convention on the Civil Aspects of International Child Abduction, which is put into effect by the International Child Abduction Remedies Act (ICARA), as well as their divorce decree, which gives the petitioner the right to designate the primary residence of the child. The respondent has countered that this case does not fall under the ICARA and that he has filed a motion in the 302nd Judicial District Court in Dallas County, Texas, to modify the divorce decree. In addition, Mr. Vega maintains that if he were to return the child to Mexico, it would put him in harms way both physically and psychologically.
During the trial, the court heard from the respondent, the petitioner, the child, and Ms. Marisol Garcia, a counselor who had numerous therapy sessions with J.G.V. The court found the testimony of the petitioner convincing and straight forward, while that of the respondent as reluctant and unsettling. In addition, the court found that J.G.V. was not mature enough to have an effect on the case. The court then turned to the expert witness testimony of Ms. Garcia.
The respondent moved to have Ms. Garcia qualified as an expert and provide her opinion on the following: 1) If the child suffered or sustained any physically or psychological damage from various incidents that occurred while in the custody of the petitioner; 2) If the child would suffer similar harm if returned to Mexico; 3) if the anxiety exhibited by J.G.V. was consistent with being locked in the bathroom while in the mother’s custody; 4) whether the information provided by the child was influenced by the respondent or members of his family.
Discussion: Ms. Garcia first indicated that she could only testify as to J.G.V’s symptoms, progress, and treatment, but she then provided opinions beyond that. In addition, Ms. Garcia, a licensed counselor with a master’s degree in counseling, was not able to put forth the methodology used by counseling professionals to determine whether a young child had been psychologically abused or influenced by an adult.
Respondent’s counsel, while asking questions of Ms. Garcia, continuously did not elicit testimony regarding the criteria and steps that should be taken by licensed counselors when determining when children have suffered from a traumatic event. The court concluded that the opinions by Ms. Garcia are not reliable under Rule 702. The court also noted that Ms. Garcia did not ask questions of J.G.V. that would have assisted in opining that J.G.V. was being truthful or verify that the information provided by J.G.V was accurate, and that she relied on incomplete facts and data to come to her conclusions.
Held: The expert testimony of Ms. Garcia, is not reliable and will not be allowed in the present case.