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

In addition, the 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, subject to protective orders under section 3103 of the civil practice law and rules.

The sections also provide that the court is required to give notice to the parties and counsel on the record that a willful failure to comply with a court order conditioning or limiting disclosure shall be contempt of court which may include punishment of a fine or imprisonment or both.

Furthermore, the 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 court ordered forensic evaluations.

In addition, the sections provide that where a court order is issued for an evaluation of the parties or a child by a forensic 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 along with underlying records and data, subject to protective orders under section 3103 of the civil practice law and rules.

Also, 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, subject to protective orders under section 3103 of the civil practice law and rules.

The sections also provide that the court is required to notice the parties and counsel on the record that a failure to comply with a court order conditioning or limiting disclosure shall be contempt of court, which may include punishment of a fine or imprisonment or both.

Furthermore, under the amendments 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.

Section 5. Effective date.

Justification

Presently in New York State, courts can direct mental health evaluations of parties and their child/ren by a court appointed forensic evaluator in custody and visitation cases to aid the court in making a decision. These evaluations are often referred to as forensic evaluations and among other things contain information based on interviews with the parents, relatives, the subject child/ren, and any other people that may have bearing on the mental health of the parties, their parenting and the parties' relationship with each other and their child/ren. The forensic reports produced by the forensic evaluator are sent directly to the courts.

Under current case law and practice, access to forensic reports and pre-trial disclosure of forensic evaluator files, including underlying data in child custody and visitation cases, is non-uniform and in many instances curtailed, resulting in inconsistent decisions regarding access to disclosure provisions in the civil practice law and rules. The limitations on access to the reports 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, the forensic reports are frequently 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 including any defects therein requires a lot of time and even expert resources. These reports generally contain substantial hearsay and hearsay-within-hearsay. The reports also contain subjective information and may contain biased or inaccurate information. Since the parents are most familiar with the facts of their lives, they are best positioned to identify factual errors in the forensic report. The help of professionals with specific expertise in the areas covered by the forensic 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 counsel must have complete access to the report with the ability to share the report with professionals retained to assist them, including those with expertise to help analyze the report. Parents are, however, frequently prevented from receiving copies of a forensic report in child custody and visitation cases and where they are otherwise given access, such as 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 prepare for trial. In addition, some of the current procedures employed for access to the reports hamper the ability of a parent to retain professionals with the expertise to assist with analyzing the contents of the forensic report. Without the ability to thoroughly examine the report and challenge its contents, a litigant's right to a fair trial is severely hampered. A parent's interest in the care, custody and management of his or her child/ren 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 interest at stake, it is important to afford parents and litigants in child custody and visitation cases due process protections and evidentiary safeguards.

This proposal gives the litigants, their counsel, if any, and the attorney for the child in child custody and visitation cases the right to obtain a copy of the forensic report and the forensic evaluator's file including the underlying data. At the same time, this proposal enables a party to obtain a copy of the forensic report and the evaluator's file to give 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 make a protective order limiting or conditioning access to the forensic report or the evaluator's 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 notice 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 forensic report must be subject to cross-examination and the rules of evidence. 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 and laws of evidence.

This proposal balances important due process rights against any countervailing concerns relating to a harmful impact on the children subject to the litigation that may result from unfettered access to forensic reports and underlying data in child custody and visitation cases.

Legislative history

New bill in Senate. 2015 and 2014: Assembly bill died on 3rd Rdg. 2013: Assembly bill died in Judiciary.

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.