Montana Code 41-3-1318. Qualified expert witness — requirements — prohibitions
41-3-1318. (Temporary) Qualified expert witness — requirements — prohibitions. (1) A qualified expert witness is an individual who provides testimony in a child custody proceeding under this part. The purpose of the testimony is to assist a court in determining whether the continued custody of the child by or the return of the child to the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The parties may not waive the requirement for the qualified expert witness testimony.
Terms Used In Montana Code 41-3-1318
- Child custody proceeding: means any state or private proceeding, other than an emergency proceeding, that may culminate in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. See Montana Code 41-3-1303
- Child protection specialist: means an employee of the department who investigates allegations of child abuse, neglect, and endangerment and has been certified pursuant to 41-3-127. See Montana Code 41-3-102
- Department: means the department of public health and human services provided for in 2-15-2201. See Montana Code 41-3-1303
- Indian: means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as established in 43 U. See Montana Code 41-3-1303
- Indian child: means an unmarried Indian person who is under 18 years of age and who is:
(a)a member of an Indian tribe; or
(b)eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. See Montana Code 41-3-1303
- Indian custodian: means an Indian person who under tribal law, tribal custom, or state law has legal or temporary physical custody of an Indian child or to whom the parent has transferred temporary care, physical custody, and control of the Indian child. See Montana Code 41-3-1303
- Parent: means a biological parent of an Indian child or an individual who has lawfully adopted an Indian child, including adoptions made as tribal customary adoptions. See Montana Code 41-3-1303
- Testify: Answer questions in court.
- Testify: means every mode of oral statement under oath or affirmation. See Montana Code 1-1-202
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- tribe: means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary of the interior because of their status as Indians. See Montana Code 41-3-1303
(2)The petitioning party shall consult with the Indian child‘s tribe on the selection of the qualified expert witness, including asking whether the tribe has a list of preferred qualified expert witnesses. To the extent possible, the petitioning party shall use an individual preferred by the tribe.
(3)A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and must be qualified to testify as to the prevailing social and cultural standards of the Indian child’s tribe.
(4)(a) If the petitioner is the department, the child protection specialist assigned to the case and the child protection specialist’s supervisor may not testify as qualified expert witnesses in the case.
(b)Nothing in this subsection (4) may be construed as barring:
(i)the child protection specialist or the child protection specialist’s supervisor from testifying as an expert witness for other purposes in a proceeding under this part; or
(ii)the petitioner or another party in a proceeding under this part from providing additional witnesses or expert testimony, subject to the approval of the court, on any issue before the court, including the determination of whether the continued custody of the Indian child by or return of the Indian child to the parent, parents, or Indian custodian is likely to result in serious emotional or physical damage to the Indian child. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)