NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8342A
SPONSOR: Weinstein (MS) 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 or 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.
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 inter-
views with the parents, relatives, the subject children, 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/rem 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 3 the reports
hamper the ability of a parent to retain professionals with the exper-
tise to assist with analyzing the contents of the forensic report. With-
out 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: New bill, 2014.
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.
