What's happening
This bill establishes new rules for access, confidentiality, and admissibility of court-ordered forensic evaluations in child custody and visitation cases.
Why it matters
Increases transparency and fairness for all parties. The bill ensures that parties, their attorneys, and the child’s attorney have the right to receive and review copies of court-ordered forensic reports and the evaluator’s full file, including notes, test materials, and underlying evidence, before and during trial. This aims to balance the power between parties and evaluators, and helps parties prepare their cases more effectively.
Sets clear confidentiality and access rules. While reports are kept under seal for privacy, the bill mandates access for involved parties, with accommodations for language and disability, and allows those assisting a party or counsel to also review these materials under specific conditions. This targets equity and support for parties with special needs.
Introduces enforceable penalties for misuse or non-compliance. Willful failure to follow court orders regarding access or disclosure of forensic reports can be punished as contempt of court, including fines or imprisonment. This adds accountability and deters misconduct around sensitive reports.
Clarifies evidentiary standards and protects due process. The bill explicitly states that forensic reports and evaluator files are not automatically admissible; their entry into evidence can be challenged by any party and is subject to standard evidentiary rules and cross-examination. This protects against uncritical acceptance of evaluator opinions and upholds procedural fairness.
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Who cares
Headline styles
Give Parents Forensic Reports
Plain English, a few words. Used as the page title.
Sponsors
2 Co-sponsors
History
- Referred to children and families
- Committed to rules
- Advanced to third reading
- 2nd report cal.
- 1st report cal.765
- Referred to children and families
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Open Forensic Reports to Parties
Assembly Floor Calendar · Sponsor Helene Weinstein
Full text
5 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
4686
2019-2020 Regular Sessions
IN SENATE
March 20, 2019
Introduced by Sen. BIAGGI -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families
AN ACT to amend the domestic relations law and the family court act, in relation to child custody forensic reports
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 70 of the domestic relations law is amended by adding a new subdivision (c) to read as follows:
(c) Court ordered forensic evaluations in proceedings involving child custody and visitation. Where a court order is issued for an evaluation or investigation of the parties or a child by a forensic mental health professional, a probation service, a child protective service or any other person authorized by statute, all of whom shall be considered "court ordered evaluators" for purposes of this subdivision, appointed by the court to assist with the determination of child custody or visitation pursuant to this article, for purposes of such court ordered forensic evaluations and investigations:
(1) Any report or evaluation prepared by the court ordered evaluator, to be known as a "forensic report" for the purposes of this subdivision, shall be confidential and kept under seal except that, all parties, their attorneys and the attorney for the child shall have a right to receive a copy of any such forensic report upon receipt of such a report by the court, subject to the provisions of section three thousand one hundred three of the civil practice law and rules. Provided, however, in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial. Any conditions or limitations imposed by the court pursuant to this subdivision relating to disclosure of the forensic report shall accommodate for language access and disability. Upon application by counsel or a party the court shall permit a copy of the forensic report and a copy of the court ordered evaluator's files as provided for under paragraph two of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00926-01-9
S. 4686 2
this subdivision to be provided to any person retained to assist counsel or any party, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(2) Pursuant to a demand made under rule three thousand one hundred twenty of the civil practice law and rules, the court ordered evaluator shall provide to a party, his or her attorney or the attorney for the child the entire file related to the proceeding including but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court ordered evaluator and any records, photographs or other evidence for inspection and photocopying, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(3) A willful failure to comply with a court order conditioning or limiting access to a forensic report shall be contempt of court and may be punishable as such as provided under section seven hundred fiftythree of the judiciary law. The court shall notify the parties and counsel on the record that a willful failure to comply with the court order shall be contempt of court which may include punishment of a fine or imprisonment or both; and
(4) Admissibility into evidence of the forensic report or the court ordered evaluator's file shall be subject to objection of any party, his or her attorney or the attorney for the child pursuant to the rules of evidence and subject to the right of cross-examination.
§ 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new paragraph (a-3) to read as follows:
(a-3) Court ordered forensic evaluations in proceedings involving child custody and visitation. Where a court order is issued for an evaluation or investigation of the parties or a child by a forensic mental health professional, a probation service, a child protective service or any other person authorized by statute, all of whom shall be considered "court ordered evaluators" for purposes of this subdivision, appointed by the court to assist with the determination of child custody or visitation pursuant to this subdivision, for purposes of such court ordered forensic evaluations and investigations:
(1) Any report or evaluation prepared by the court ordered evaluator, to be known as a "forensic report" for the purposes of this paragraph, shall be confidential and kept under seal except that, all parties, their attorneys and the attorney for the child shall have a right to receive a copy of any such forensic report upon receipt of such a report by the court, subject to the provisions of section three thousand one hundred three of the civil practice law and rules. Provided, however, in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial. Any conditions or limitations imposed by the court pursuant to this subdivision relating to disclosure of the forensic report shall accommodate for language access and disability. Upon application by counsel or a party the court shall permit a copy of the forensic report and a copy of the court ordered evaluator's files as provided for under subparagraph two of this paragraph to be provided to any person retained to assist counsel or any party, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(2) Pursuant to a demand made under rule three thousand one hundred twenty of the civil practice law and rules, the court ordered evaluator shall provide to a party, his or her attorney or the attorney for the child the entire file related to the proceeding including but not limited to, all underlying notes, test data, raw test materials, underlying
S. 4686 3
materials provided to or relied upon by the court ordered evaluator and any records, photographs or other evidence for inspection and photocopying, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(3) A willful failure to comply with a court order conditioning or limiting access to a forensic report shall be contempt of court and may be punishable as such as provided under section seven hundred fiftythree of the judiciary law. The court shall notify the parties and counsel on the record that a willful failure to comply with the court order shall be contempt of court which may include punishment of a fine or imprisonment or both; and
(4) Admissibility into evidence of the forensic report or the court ordered evaluator's file shall be subject to objection of any party, his or her attorney or the attorney for the child pursuant to the rules of evidence and subject to the right of cross-examination.
§ 3. Subdivision (c) of section 251 of the family court act is relettered subdivision (d) and a new subdivision (c) is added to read as follows:
(c) Court ordered forensic evaluations in child custody and visitation proceedings. Notwithstanding the provisions of this section to the contrary, where a court order is issued for an evaluation or investigation of the parties or a child by a forensic mental health professional, a probation service, a child protective service or any other person authorized by statute, all of whom shall be considered "court ordered evaluators" for purposes of this subdivision, appointed by the court to assist with the determination of child custody or visitation pursuant to article four or six of this act, for purposes of such court ordered forensic evaluations and investigations:
(1) Notwithstanding section one hundred sixty-five of this act and section four hundred eight of the civil practice law and rules, the provisions and limitations of sections three thousand one hundred one and three thousand one hundred three of the civil practice law and rules shall apply; and
(2) Any report or evaluation prepared by the court ordered evaluator, to be known as a "forensic report" for the purposes of this subdivision, shall be confidential and kept under seal except that, all parties, their attorneys and the attorney for the child shall have a right to receive a copy of any such forensic report upon receipt of such a report by the court, subject to the provisions of section three thousand one hundred three of the civil practice law and rules. Provided, however, in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial. Any conditions or limitations imposed by the court pursuant to this subdivision relating to disclosure of the forensic report shall accommodate for language access and disability. Upon application by counsel or a party the court shall permit a copy of the forensic report and a copy of the court ordered evaluator's files as provided for under paragraph three of this subdivision to be provided to any person retained to assist counsel or any party, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(3) Pursuant to a demand made under rule three thousand one hundred twenty of the civil practice law and rules, the court ordered evaluator shall provide to a party, his or her attorney or the attorney for the child the entire file related to the proceeding including but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court ordered evaluator and
S. 4686 4
any records, photographs or other evidence for inspection and photocopying, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(4) A willful failure to comply with a court order conditioning or limiting access to a forensic report shall be contempt of court and may be punishable as such as provided under section seven hundred fiftythree of the judiciary law. The court shall notify the parties and counsel on the record that a willful failure to comply with the court order shall be contempt of court which may include punishment of a fine or imprisonment or both; and
(5) Admissibility into evidence of the forensic report or the court ordered evaluator's file shall be subject to objection of any party, his or her attorney or the attorney for the child pursuant to the rules of evidence and subject to the right of cross-examination.
§ 4. Section 651 of the family court act is amended by adding a new subdivision (g) to read as follows:
(g) Court ordered forensic evaluations in child custody and visitation proceedings. Notwithstanding the provisions of this section to the contrary, where a court order is issued for an evaluation or investigation of the parties or a child by a forensic mental health professional, a probation service, a child protective service or any other person authorized by statute, all of whom shall be considered "court ordered evaluators" for purposes of this subdivision, appointed by the court to assist with the determination of child custody or visitation pursuant to this article or article four of this act, for purposes of such court ordered forensic evaluations and investigations:
(1) Notwithstanding section one hundred sixty-five of this act and section four hundred eight of the civil practice law and rules, the provisions and limitations of sections three thousand one hundred one and three thousand one hundred three of the civil practice law and rules shall apply; and
(2) Any report or evaluation prepared by the court ordered evaluator, to be known as a "forensic report" for the purposes of this subdivision, shall be confidential and kept under seal except that, all parties, their attorneys and the attorney for the child shall have a right to receive a copy of any such forensic report upon receipt of such a report by the court, subject to the provisions of section three thousand one hundred three of the civil practice law and rules. Provided, however, in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial. Any conditions or limitations imposed by the court pursuant to this subdivision relating to disclosure of the forensic report shall accommodate for language access and disability. Upon application by counsel or a party the court shall permit a copy of the forensic report and a copy of the court ordered evaluator's files as provided for under paragraph three of this subdivision to be provided to any person retained to assist counsel or any party, subject to the provisions of section three thousand one hundred three of the civil practice law and rules; and
(3) Pursuant to a demand made under rule three thousand one hundred twenty of the civil practice law and rules, the court ordered evaluator shall provide to a party, his or her attorney or the attorney for the child the entire file related to the proceeding including but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court ordered evaluator and any records, photographs or other evidence for inspection and photocopy-
S. 4686 5
ing, subject to section three thousand one hundred three of the civil practice law and rules; and
(4) A willful failure to comply with a court order conditioning or limiting access to a forensic report shall be contempt of court and may be punishable as such as provided under section seven hundred fiftythree of the judiciary law. The court shall notify the parties and counsel on the record that a willful failure to comply with the court order shall be contempt of court which may include punishment of a fine or imprisonment or both; and
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the domestic relations law and the family court act, in relation to child custody forensic reports
Purpose of bill
This legislation provides for uniform access to court ordered forensic mental health evaluation reports and underlying data by litigants, their counsels and the counsel for the attorney for the child in child custody and visitation cases.
Summary of provisions of bill
Sections 1 and 2. Amend sections 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 along with underlying records and data, subject to protective orders under section 3103 of the civil practice law and rules.
Read the full memo (1,589 words)
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 notice 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 foren- sic 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 coun- sel 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 chal- lenge 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 proce- dures.
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 general- ly 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 foren- sic report. The help of professionals with specific expertise in the areas covered by the forensic report is also important to properly eval- uate 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 abil- ity 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 visita- tion cases 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 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 counter- vailing concerns relating to a harmful impact on the child/ren subject to the litigation that may result from unfettered access to forensic reports and underlying data in child custody and visitation cases.
Legislative history
2018: A.1533/S.6300 - A. Cal/S. Child & Fam 2017: A.1533/S.6300 - A. Cal/S. Rules 2016: A.290/S.7089 - PA/S. Rules 2015: A.290 - A. Cal. 2014: A.8342-A - A. Cal. 2013: A.8342 - A. Judi
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.
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