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Calling Witnesses in Divorce and Child Custody Cases in Illinois

Article written by Attorney Kevin O'Flaherty
Updated on
August 24, 2020

In this article, we discuss the requirements for calling a witness in divorce and child custody cases in Illinois. We cover the Three types of categories for witnesses, How Do You Get the Witness to Testify in Illinois?, Who Should I Call as A Witness?, How Many Witnesses Should I Call?, and How Long Will the Witnesses Be Needed to Be in Court?

Before a divorce or child custody proceeding goes to trial in Illinois the parties must each disclose the witnesses they will call to testify on their behalf, and the documents they will use as exhibits.  When disclosing a witness, the Illinois Supreme Court Rule 213, requires a party to furnish the identity and addresses of witnesses who will testify at trial. The parties must also identify what category of witness the person will be testifying. 

Three types of categories for witnesses

  1. Lay Witness – A lay witness provides only their personal opinions or observations. They cannot testify to an expert topic.  
  2. Independent Expert Witness – Experts provide testimony on a specialized topic, has not been retained by the party, and is not an employee. For this type of witness the party must identify the subjects the witness will be testifying about and opinions the party expects to elicit.
  3. Controlled Expert Witness – An expert witness who is a party, or an employee to the party, or retained by the party. For this witness the party must identify the subject matter the witness will testify about, the conclusions and opinions and the basis thereof, the qualifications of the witness and any reports by the witness about the case.

How Do You Get the Witness to Testify in Illinois?

If you know the witness, you may simply ask them to come to the courthouse to testify on your behalf, but there is the possibility they may not show up, and then you will not have a witness. The best way to ensure a witness shows up to court is to have formally served with a subpoena. 

A subpoena requires someone to come to the courthouse and to testify in court—it is a court order to appear. Anyone that is served a subpoena must show up to court. If they do not it can result in a contempt of court, and the judge can impose sanctions to make a witness testify. A subpoena must be served (given) 7 days before the court date. The subpoena will also help in excusing the witness from work, because it shows they have a court order requiring their presence.

Who Should I Call as A Witness?

Who you call as a witness will depend on the issues of your trial. If there is a financial issue such as value of assets, value of property, value of the businesses, you will want an expert witness for financial matters and appraising the property. This could include a CPA, a bookkeeper, or an real estate appraiser. If there is an issue with parenting time, child custody witnesses that would be beneficial are those who have seen you interact with your children. This could include day care providers, your pastor, other parents, friends of the family.  

How Many Witnesses Should I Call?

There is no set number of witnesses. You may need one for financial, and two or three for parenting. The purpose of the witnesses will be to fill in the gaps. Keep in mind the number of witnesses is not as important as the quality of the witnesses testimony. 

How Long Will the Witnesses Be Needed to Be in Court?

For a lay witness most testimony will not take more than thirty minutes. An expert witness may take longer depending on the number of issues that will need to be addressed. No one, not even the judge, knows how the trial schedule will go. Which means witnesses may have to wait out in the hallway for several hours until it is time for them to testify.  

Witnesses are a very important part of the trial process. Not only will you have lay witnesses, and possibly expert witnesses, but you will be testifying at trial. Your attorney will work with you in ensuring you are prepared for trial, and prepare you to bring forth the strongest case possible.

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Calling Witnesses in Divorce and Child Custody Cases in Illinois

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