Who Pays Expert Witness Fees in Virginia Custody?

Parents in contested custody litigation usually budget for their own lawyer. Fewer of them budget for the therapist, evaluator, or other professional who ends up on the witness stand. That bill can be substantial. On September 15, 2026, the Court of Appeals of Virginia issued a published opinion addressing the allocation of expert witness fees in Virginia custody litigation, and the answer is narrower than trial practice has often assumed.

The case is Ashley Blanks v. Tyler Winslow Blanks, Record No. 0328-25-2, decided on appeal from the Circuit Court of Mecklenburg County. The opinion was written by Judge David Bernhard, who sat on the Fairfax Circuit Court bench in the Nineteenth Judicial Circuit before joining the Court of Appeals in January 2025. Because the opinion is published, it carries precedential weight in every Virginia circuit court, including Fairfax and Loudoun. The full text is available through Virginia’s Judicial System opinions portal.

What the Court of Appeals Decided

The parents separated after roughly eight years of marriage and filed cross petitions for custody and visitation in juvenile and domestic relations district court. The mother appealed to circuit court. As part of a temporary shared custody arrangement, the court required both parents to attend co-parenting counseling. The therapist they engaged, a trauma counselor, eventually concluded that co-parenting had become unfeasible and terminated her services.

She testified on two days. On both, the father subpoenaed her and called her. The mother cross-examined her. After awarding the father full custody, the circuit court set the therapist’s appearance fee at $1,500 per day and directed each parent to pay $1,500, for a total of $3,000.

The Court of Appeals reversed that allocation. It held that Code § 17.1-612 commits the amount of an expert’s appearance fee to the trial court’s discretion, but not the allocation of it. The operative language provides that an expert compelled to attend and testify “shall be allowed such compensation and mileage as the court may, if requested in its discretion, order without regard to any limitation described above, but the same shall be paid by the party in whose behalf he shall testify.” That last clause, the Court held, is mandatory. Because the therapist testified in the father’s behalf, the father bears her appearance fee. The case was remanded for entry of an order consistent with the opinion, including reimbursement to the mother if she had already paid.

Why “In Whose Behalf” Is Not the Same as “Who Benefited”

The distinction is easy to blur in practice. A trial court confronted with a shared expense in a high-conflict case often looks for a fair-sounding split. The statute, as the Court of Appeals read it, does not invite that inquiry. It asks a mechanical question: which party called this witness to advance that party’s case?

The Court anchored that reading in the structure of the section, which elsewhere requires that the entry of what a witness is owed state “by what party it is to be paid.” The discretion the General Assembly conferred runs to the size of the allowance, not to who writes the check.

Does Cross-Examining an Expert Make Her Your Witness?

No. The circuit court had reasoned that the therapist “answered questions by both parties.” The Court of Appeals responded that this describes cross-examination, not alignment. The opinion makes the point in structural terms: because every witness who testifies is subject to cross-examination, treating cross-examination as adoption would drain the allocation clause of any content, leaving the statute’s command to identify no party at all.

Practitioners should read that holding for what it is. It resolves the fee-allocation question. It does not alter the rules governing the scope of cross-examination or the use of an expert’s opinions at trial.

What About a Therapist Both Parents Hired?

This is the part of the opinion most likely to recur in Northern Virginia practice, because co-parenting counselors, reunification therapists, and family therapists are routinely engaged jointly under a temporary order that splits their cost. That pattern is common in the high-conflict custody cases we handle in Fairfax and Loudoun.

The circuit court had also reasoned that the therapist “was engaged by both the father and the mother.” So she was, under a temporary order directing the parents to share her counseling costs equally. The Court of Appeals held that this did not change the analysis, because the fee at issue was not a counseling cost. The therapist’s own rate sheet separated her hourly charge for clinical work from a flat testimony fee payable by the party requesting her testimony, and the circuit court had drawn that same line. Joint engagement for treatment, the opinion states, does not make a witness jointly aligned when she later testifies.

One wrinkle is worth noting. The clerk’s record reflected a subpoena duces tecum issued on the mother’s behalf. That did not matter, because such a subpoena commands the production of documents rather than testimony.

What This Means for Fairfax and Loudoun Custody Litigation

Several practical consequences follow, though I would separate what the opinion holds from what practitioners may reasonably infer from it.

The holding is straightforward: where a party compels an expert’s attendance and calls that expert to testify, § 17.1-612 assigns the appearance fee to that party, and the trial court’s discretion does not extend to splitting it.

The inferences are these. First, the decision to subpoena a jointly retained professional now carries a cost consequence that should be priced into trial strategy before the subpoena issues. Where a co-parenting therapist’s testimony is expected to help both sides in different respects, each party may have reason to summon the witness separately rather than rely on the other’s subpoena. Second, engagement letters and rate sheets that separate clinical charges from testimony fees, as this therapist’s did, give the trial court a clean line to draw and are worth insisting on at the outset. Third, a party who objects to a fee allocation should object contemporaneously, as the mother did here, and should note the opinion’s footnote observing that voluntary payment of a judgment ordinarily forfeits the right of appeal, an argument the father did not press.

Custody is also not the only setting in which a Virginia family law case turns on paid expert testimony. Business valuators and forensic accountants appear in equitable distribution litigation over closely held companies and executive compensation, vocational evaluators in contested spousal support cases, and pension experts in military and federal-employee divorces. By its terms the statute is not limited to custody experts.

Practice on expert and professional fees is not uniform across circuits. Fairfax and Loudoun differ in local scheduling practices and in how routinely co-parenting counseling is ordered on a temporary basis, and counsel should confirm current practice in the specific court.

What the Opinion Does Not Decide

Three limits are worth stating plainly.

The opinion addresses an expert compelled to attend and testify under § 17.1-612. It does not address the compensation of a guardian ad litem or a court-appointed custody evaluator, which raises separate questions governed by provisions in Title 16.1 relating to appointment and compensation, and it does not address how a court should allocate the cost of a professional the court itself appoints rather than one a party subpoenas.

It does not address the underlying custody award. A separate order issued the same day resolved the mother’s remaining assignments of error in the father’s favor, including her challenges to the best-interests findings under the statutory factors in Code § 20-124.3 and to the circuit court’s reliance on the therapist’s opinions. The reversal was limited to the fee provision.

Finally, as of this writing the opinion has no published reporter citation. It should be cited by record number and date until one issues, and counsel should confirm whether any petition for rehearing or further appeal has been filed before relying on it.

Frequently Asked Questions

Who pays expert witness fees in a Virginia custody case?

Under Code § 17.1-612, an expert who is compelled to attend and testify is paid by the party in whose behalf the expert testifies. The Court of Appeals held in September 2026 that a trial court’s discretion under that statute goes to the amount of the fee, not to how it is divided between the parties.

Can a Virginia judge split an expert’s appearance fee between both parents?

The Court of Appeals held that the statutory direction assigning the fee to the party in whose behalf the expert testifies is mandatory. A court retains discretion over the amount. Outcomes in any particular case depend on which party summoned and called the witness and on the record made in the trial court.

If both parents hired the co-parenting counselor, do both pay for her testimony?

Not necessarily. The Court of Appeals distinguished the cost of counseling, which the parties had been ordered to share, from the counselor’s fee for appearing and testifying. Joint engagement for treatment does not by itself make the witness jointly aligned at trial.

Does cross-examining the other side’s expert make me responsible for part of the fee?

The Court of Appeals held that it does not. Cross-examination is not an adoption of the witness for purposes of § 17.1-612.

A Closing Note

The allocation of an expert’s fee is one line item in a larger strategic picture that includes which professionals to involve, when to involve them, and whether their testimony advances the objectives that matter most to a particular client and child. Nothing here is legal advice about any specific matter, and outcomes depend on the facts of each case and on the record made in the trial court.