Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings

Summary of provisions

Sections 1 and 2. Amend section 70 and subdivision 1 of section 240 of the domestic relations law respectively, to provide that where a court order is issued for an evaluation of the parties or a child by a foren- sic mental health professional or any other person appointed by the court to assist with the determination of child custody or visitation, any report prepared by the forensic evaluator shall be confidential and under seal except that all parties, their attorneys and the attorney for the child shall have a right to a copy of the forensic report as well as a copy of the forensic evaluator's file, including supporting records and data, subject to the issuance of a protective order pursuant to section 3103 of the civil practice law and rules.

In addition, these sections provide that, upon application to the court, any person retained to assist counsel or any party shall be provided a copy of the forensic report and the court ordered evaluator's file, also subject to the issuance of a protective order pursuant to section 3103 of the civil practice law and rules.

Sections 1 and 2 also provide that the court is required to give notice to the parties and counsel, on the record, that a failure to comply with a court order conditioning or limiting disclosure of the forensic report or the forensic evaluator's file shall be contempt of court, which may include punishment of a fine or imprisonment or both.

Furthermore, these sections provide that the admissibility into evidence of the forensic report or the forensic evaluator's file shall be subject to the rules of evidence and subject to the right of cross-examination.

Sections 3 and 4. Amend subdivisions (c) and (d) of section 251 of the family court act and section 651 of the family court act respectively, to provide that notwithstanding section 165 of the family court act and section 408 of the civil practice law and rules, sections 3101 and 3103 of the civil practice law and rules shall apply to pre-trial discovery of court ordered. forensic evaluations in child custody and visitation cases.

In addition, these sections make conforming amendments identical to and consistent with sections 1 and 2 of the proposal.

Section 5. Effective date.

Justification

Presently in New York State, courts can direct mental health evaluations of parties and their children by a court-appointed forensic evaluator in custody and visitation eases to aid the court in making a decision. Reports prepared by these evaluators are often referred to as forensic reports, and among other things contain informa- tion based on interviews with the parents, relatives, the subject chil- dren, and any other persons who may have information bearing on the mental health of the parties, their parenting and the parties' relation- ship with each other and their children. The forensic reports are sent directly to the court that has appointed the evaluator.

Under current case law and practice, access to forensic reports and pre-trial disclosure of forensic evaluator files, including underlying records and data for the report in child custody and visitation cases, is not Uniform and in many instances significantly limited, often resulting in disparate judicial determinations regarding access to these reports and data. The limitations on access to the reports and the underlying records and data raise serious due process concerns including the inability of parents to adequately and effectively challenge the quality and trustworthiness of forensic reports that play a critical and often decisive role in shaping a court's decision about parental access to their children. In addition, under existing practice, forensic reports are often not subjected to the rigor of evidentiary laws and procedures.

Forensic reports are lengthy, complex and contain facts, scientific and/or other data and conclusions of the evaluator on the basis of the data. Thorough analysis of the reports requires a lot of time and even expert resources. These reports generally contain substantial hearsay and hearsay-within-hearsay. The reports also contain subjective informa- tion and may contain biased or inaccurate information. Since the parents are most familiar with the facts of their lives, they are best posi- tioned to identify factual errors in the forensic report. The help of professionals with specific expertise in the areas covered by the foren- sic report is also important to properly evaluate the report and its conclusions. In order to challenge the accuracy of the report on the facts, data and on the conclusions, and to prepare for an effective cross-examination of the forensic evaluator, the parties and their coun- sel must have complete access to the report and underlying data with the ability to share the report and underlying records and data with profes- sionals retained to assist them, including those with expertise to help analyze the report.

Under present practice, however, a parent's and his or her attorney's access to these critical evaluations is not uniformly provided for. Parents are frequently prevented from receiving copies of a forensic report in child custody and visitation cases. Further, in cases where they are given access to these reports, such as through permission to view the report at the court house or at counsel's office, where parties have counsel, the conditions of access may be so circumscribed that they inhibit the ability of parents and/or their counsel to adequately prepare for trial. In addition, some of the current procedures employed

for access to forensic reports hamper the ability of parents to retain professionals with the expertise to assist them with analyzing the contents of the forensic reports. Furthermore, parties and their attor- neys are frequently not permitted access to the forensic evaluators' files related to the case including underlying records and data. Obtain- ing forensic reports without the ability to examine the data upon which the reports are based is inadequate for a complete assessment of the reports. Without the ability to thoroughly examine the report and chal- lenge its contents if need be, a litigants right to a fair trial is severely hampered.

A parent's interest in the care, custody and management of his or her children is one of the oldest and most fundamental liberty interests recognized by law. This right has also been recognized by the United States Supreme Court in its decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000). In light of the significant parental inter- est at stake, it is important to afford parents and litigants in child custody and visitation cases with appropriate due process protections and evidentiary safeguards.

This proposal gives the litigants, their counsel, if any, and the attor- ney for the child in child custody and visitation cases the right to obtain a copy of the forensic report and the underlying data. In addi- tion, this proposal enables a party to provide a copy of the forensic report and the underlying data to professionals retained to help with the case, including e.g. an expert to rebut the contents of a forensic report.

However, under the proposal, at each step, the court has the ability to issue a protective order limiting or conditioning access to the forensic report or the evaluators file. In addition, the court has the authority to hold violators of their court orders directing such limitations or conditions in contempt of court. The court is also required to provide clear notice to the parties and counsel that a violation of a court order conditioning or limiting disclosure shall be contempt of court which may include punishment of a fine or imprisonment or both.

The proposal also provides that the admissibility into evidence of the forensic report must be subject to the rules of evidence and the right of cross-examination. This will help ensure that the contents of the forensic report can be fully challenged and are subject to the rigor required under the rules of evidence.

In sum, this proposal balances important due process rights of all liti- gants in custody and visitation actions against any countervailing concerns relating to a harmful impact upon subject children that may result from unfettered access to forensic reports and under lying data.

Legislative history

New bill - 2013.

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law, with the chief administrator of the courts authorized and directed to promulgate any rules necessary to implement the provisions of the act on or before the effective date.