A05621 Summary:

BILL NOA05621
 
SAME ASSAME AS S04686
 
SPONSORWeinstein (MS)
 
COSPNSRSeawright, Taylor, Hunter, D'Urso
 
MLTSPNSRBraunstein, Cook, Glick, Jaffee
 
Amd §§70 & 240, Dom Rel L; amd §§251 & 651, Fam Ct Act
 
Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings.
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A05621 Actions:

BILL NOA05621
 
02/14/2019referred to judiciary
03/19/2019reported referred to codes
04/09/2019reported
04/25/2019advanced to third reading cal.198
06/11/2019passed assembly
06/11/2019delivered to senate
06/11/2019REFERRED TO RULES
01/08/2020DIED IN SENATE
01/08/2020RETURNED TO ASSEMBLY
01/08/2020ordered to third reading cal.215
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A05621 Committee Votes:

JUDICIARY Chair:Dinowitz DATE:03/19/2019AYE/NAY:14/6 Action: Favorable refer to committee Codes
DinowitzAyePalumboNay
TitusAyeMontesanoNay
LavineAyeGoodellNay
ZebrowskiAyeNorrisNay
WeprinAyeWalshNay
BraunsteinExcusedByrnesNay
SimotasAye
QuartAye
BuchwaldAye
SteckAye
SeawrightAye
JoynerAye
AbinantiAye
WrightAye
WallaceAye

CODES Chair:Lentol DATE:04/09/2019AYE/NAY:16/6 Action: Favorable
LentolAyeRaNay
SchimmingerAyeGiglioNay
PretlowAyeMontesanoNay
CookAyeMorinelloNay
CymbrowitzAyePalumboNay
O'DonnellAyeGarbarinoNay
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye
SeawrightAye
RosenthalAye

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A05621 Floor Votes:

DATE:06/11/2019Assembly Vote  YEA/NAY: 99/41
Yes
Abbate
Yes
Crespo
ER
Gantt
No
LiPetri
Yes
Perry
Yes
Simon
Yes
Abinanti
No
Crouch
No
Garbarino
Yes
Lupardo
Yes
Pheffer Amato
Yes
Simotas
Yes
Arroyo
Yes
Cruz
No
Giglio
Yes
Magnarelli
Yes
Pichardo
No
Smith
No
Ashby
Yes
Cusick
Yes
Glick
No
Malliotakis
Yes
Pretlow
No
Smullen
Yes
Aubry
Yes
Cymbrowitz
No
Goodell
No
Manktelow
Yes
Quart
Yes
Solages
No
Barclay
Yes
Davila
Yes
Gottfried
Yes
McDonald
No
Ra
No
Stec
Yes
Barnwell
Yes
De La Rosa
Yes
Griffin
No
McDonough
Yes
Raia
Yes
Steck
Yes
Barrett
Yes
DenDekker
Yes
Gunther
Yes
McMahon
Yes
Ramos
Yes
Stern
Yes
Barron
No
DeStefano
No
Hawley
No
Mikulin
Yes
Raynor
No
Stirpe
Yes
Benedetto
Yes
Dickens
ER
Hevesi
No
Miller B
No
Reilly
No
Tague
ER
Bichotte
Yes
Dilan
Yes
Hunter
Yes
Miller MG
Yes
Reyes
Yes
Taylor
Yes
Blake
Yes
Dinowitz
ER
Hyndman
No
Miller ML
Yes
Richardson
Yes
Thiele
No
Blankenbush
No
DiPietro
Yes
Jacobson
No
Montesano
Yes
Rivera
ER
Titus
No
Brabenec
Yes
D'Urso
Yes
Jaffee
No
Morinello
ER
Rodriguez
Yes
Vanel
Yes
Braunstein
Yes
Eichenstein
ER
Jean-Pierre
Yes
Mosley
Yes
Romeo
No
Walczyk
Yes
Bronson
Yes
Englebright
Yes
Johns
Yes
Niou
Yes
Rosenthal D
Yes
Walker
Yes
Buchwald
Yes
Epstein
Yes
Jones
Yes
Nolan
Yes
Rosenthal L
Yes
Wallace
Yes
Burke
Yes
Fahy
Yes
Joyner
No
Norris
Yes
Rozic
No
Walsh
Yes
Buttenschon
Yes
Fall
No
Kim
Yes
O'Donnell
Yes
Ryan
Yes
Weinstein
No
Byrne
Yes
Fernandez
No
Kolb
Yes
Ortiz
No
Salka
Yes
Weprin
No
Byrnes
No
Finch
ER
Lalor
Yes
Otis
Yes
Santabarbara
Yes
Williams
Yes
Cahill
No
Fitzpatrick
Yes
Lavine
No
Palmesano
Yes
Sayegh
Yes
Woerner
Yes
Carroll
ER
Friend
No
Lawrence
No
Palumbo
Yes
Schimminger
Yes
Wright
Yes
Colton
Yes
Frontus
Yes
Lentol
Yes
Paulin
No
Schmitt
ER
Zebrowski
Yes
Cook
Yes
Galef
Yes
Lifton
Yes
Peoples-Stokes
Yes
Seawright
Yes
Mr. Speaker

‡ Indicates voting via videoconference
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A05621 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5621
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 14, 2019
                                       ___________
 
        Introduced  by  M. of A. WEINSTEIN, SEAWRIGHT, TAYLOR -- Multi-Sponsored
          by -- M. of A.   BRAUNSTEIN, COOK, GLICK,  JAFFEE  --  read  once  and
          referred to the Committee on Judiciary
 
        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  Assem-
        bly, do enact as follows:
 
     1    Section  1.    Section  70 of the domestic relations law is amended by
     2  adding a new subdivision (c) to read as follows:
     3    (c) Court ordered forensic evaluations in proceedings involving  child
     4  custody  and visitation. Where a court order is issued for an evaluation
     5  or investigation of the parties or a child by a forensic  mental  health
     6  professional,  a  probation  service,  a child protective service or any
     7  other person authorized by statute, all  of  whom  shall  be  considered
     8  "court  ordered  evaluators" for purposes of this subdivision, appointed
     9  by the court to assist with the determination of child custody or  visi-
    10  tation  pursuant  to  this  article,  for purposes of such court ordered
    11  forensic evaluations and investigations:
    12    (1) Any report or evaluation prepared by the court ordered  evaluator,
    13  to be known as a "forensic report" for the purposes of this subdivision,
    14  shall  be  confidential  and  kept  under seal except that, all parties,
    15  their attorneys and the attorney for the child shall  have  a  right  to
    16  receive a copy of any such forensic report upon receipt of such a report
    17  by  the  court,  subject to the provisions of section three thousand one
    18  hundred three of the civil practice law and rules. Provided, however, in
    19  no event shall a party or his or her counsel be prevented from access to
    20  or review of a forensic report in  advance  of  and  during  trial.  Any
    21  conditions or limitations imposed by the court pursuant to this subdivi-
    22  sion relating to disclosure of the forensic report shall accommodate for
    23  language  access  and disability. Upon application by counsel or a party
    24  the court shall permit a copy of the forensic report and a copy  of  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00926-01-9

        A. 5621                             2
 
     1  court  ordered  evaluator's files as provided for under paragraph two of
     2  this subdivision to be provided to any person retained to assist counsel
     3  or any party, subject to the provisions of section  three  thousand  one
     4  hundred three of the civil practice law and rules; and
     5    (2)  Pursuant  to  a demand made under rule three thousand one hundred
     6  twenty of the civil practice law and rules, the court ordered  evaluator
     7  shall  provide  to  a party, his or her attorney or the attorney for the
     8  child the entire file related to the proceeding including but not limit-
     9  ed to, all underlying notes, test data, raw test  materials,  underlying
    10  materials  provided to or relied upon by the court ordered evaluator and
    11  any records, photographs or other evidence for inspection and photocopy-
    12  ing, subject to the provisions of section  three  thousand  one  hundred
    13  three of the civil practice law and rules; and
    14    (3)  A  willful  failure  to comply with a court order conditioning or
    15  limiting access to a forensic report shall be contempt of court and  may
    16  be  punishable  as  such  as provided under section seven hundred fifty-
    17  three of the judiciary law. The court shall notify the parties and coun-
    18  sel on the record that a willful failure to comply with the court  order
    19  shall  be  contempt  of  court which may include punishment of a fine or
    20  imprisonment or both; and
    21    (4) Admissibility into evidence of the forensic report  or  the  court
    22  ordered evaluator's file shall be subject to objection of any party, his
    23  or  her  attorney or the attorney for the child pursuant to the rules of
    24  evidence and subject to the right of cross-examination.
    25    § 2. Subdivision 1 of section 240 of the  domestic  relations  law  is
    26  amended by adding a new paragraph (a-3) to read as follows:
    27    (a-3)  Court  ordered  forensic  evaluations  in proceedings involving
    28  child custody and visitation. Where a court order is issued for an eval-
    29  uation or investigation of the parties or a child by a  forensic  mental
    30  health  professional, a probation service, a child protective service or
    31  any other person authorized by statute, all of whom shall be  considered
    32  "court  ordered  evaluators" for purposes of this subdivision, appointed
    33  by the court to assist with the determination of child custody or  visi-
    34  tation  pursuant to this subdivision, for purposes of such court ordered
    35  forensic evaluations and investigations:
    36    (1) Any report or evaluation prepared by the court ordered  evaluator,
    37  to  be  known as a "forensic report" for the purposes of this paragraph,
    38  shall be confidential and kept under  seal  except  that,  all  parties,
    39  their  attorneys  and  the  attorney for the child shall have a right to
    40  receive a copy of any such forensic report upon receipt of such a report
    41  by the court, subject to the provisions of section  three  thousand  one
    42  hundred three of the civil practice law and rules. Provided, however, in
    43  no event shall a party or his or her counsel be prevented from access to
    44  or  review  of  a  forensic  report in advance of and during trial.  Any
    45  conditions or limitations imposed by the court pursuant to this subdivi-
    46  sion relating to disclosure of the forensic report shall accommodate for
    47  language access and disability. Upon application by counsel or  a  party
    48  the  court  shall permit a copy of the forensic report and a copy of the
    49  court ordered evaluator's files as provided for under  subparagraph  two
    50  of  this paragraph to be provided to any person retained to assist coun-
    51  sel or any party, subject to the provisions of  section  three  thousand
    52  one hundred three of the civil practice law and rules; and
    53    (2)  Pursuant  to  a demand made under rule three thousand one hundred
    54  twenty of the civil practice law and rules, the court ordered  evaluator
    55  shall  provide  to  a party, his or her attorney or the attorney for the
    56  child the entire file related to the proceeding including but not limit-

        A. 5621                             3
 
     1  ed to, all underlying notes, test data, raw test  materials,  underlying
     2  materials  provided to or relied upon by the court ordered evaluator and
     3  any records, photographs or other evidence for inspection and photocopy-
     4  ing,  subject  to  the  provisions of section three thousand one hundred
     5  three of the civil practice law and rules; and
     6    (3) A willful failure to comply with a  court  order  conditioning  or
     7  limiting  access to a forensic report shall be contempt of court and may
     8  be punishable as such as provided under  section  seven  hundred  fifty-
     9  three of the judiciary law. The court shall notify the parties and coun-
    10  sel  on the record that a willful failure to comply with the court order
    11  shall be contempt of court which may include punishment  of  a  fine  or
    12  imprisonment or both; and
    13    (4)  Admissibility  into  evidence of the forensic report or the court
    14  ordered evaluator's file shall be subject to objection of any party, his
    15  or her attorney or the attorney for the child pursuant to the  rules  of
    16  evidence and subject to the right of cross-examination.
    17    §  3. Subdivision (c) of section 251 of the family court act is relet-
    18  tered subdivision (d) and a new subdivision (c)  is  added  to  read  as
    19  follows:
    20    (c) Court ordered forensic evaluations in child custody and visitation
    21  proceedings.  Notwithstanding  the  provisions  of  this  section to the
    22  contrary, where a court order is issued for an  evaluation  or  investi-
    23  gation  of  the  parties  or a child by a forensic mental health profes-
    24  sional, a probation service, a child protective  service  or  any  other
    25  person  authorized  by  statute,  all of whom shall be considered "court
    26  ordered evaluators" for purposes of this subdivision, appointed  by  the
    27  court  to  assist  with the determination of child custody or visitation
    28  pursuant to article four or six of this act, for purposes of such  court
    29  ordered forensic evaluations and investigations:
    30    (1)  Notwithstanding  section  one  hundred sixty-five of this act and
    31  section four hundred eight of the civil  practice  law  and  rules,  the
    32  provisions  and  limitations  of sections three thousand one hundred one
    33  and three thousand one hundred three of the civil practice law and rules
    34  shall apply; and
    35    (2) Any report or evaluation prepared by the court ordered  evaluator,
    36  to be known as a "forensic report" for the purposes of this subdivision,
    37  shall  be  confidential  and  kept  under seal except that, all parties,
    38  their attorneys and the attorney for the child shall  have  a  right  to
    39  receive a copy of any such forensic report upon receipt of such a report
    40  by  the  court,  subject to the provisions of section three thousand one
    41  hundred three of the civil practice law and rules. Provided, however, in
    42  no event shall a party or his or her counsel be prevented from access to
    43  or review of a forensic report in advance of  and  during  trial.    Any
    44  conditions or limitations imposed by the court pursuant to this subdivi-
    45  sion relating to disclosure of the forensic report shall accommodate for
    46  language  access  and disability. Upon application by counsel or a party
    47  the court shall permit a copy of the forensic report and a copy  of  the
    48  court ordered evaluator's files as provided for under paragraph three of
    49  this subdivision to be provided to any person retained to assist counsel
    50  or  any  party,  subject to the provisions of section three thousand one
    51  hundred three of the civil practice law and rules; and
    52    (3) Pursuant to a demand made under rule three  thousand  one  hundred
    53  twenty  of the civil practice law and rules, the court ordered evaluator
    54  shall provide to a party, his or her attorney or the  attorney  for  the
    55  child the entire file related to the proceeding including but not limit-
    56  ed  to,  all underlying notes, test data, raw test materials, underlying

        A. 5621                             4
 
     1  materials provided to or relied upon by the court ordered evaluator  and
     2  any records, photographs or other evidence for inspection and photocopy-
     3  ing,  subject  to  the  provisions of section three thousand one hundred
     4  three of the civil practice law and rules; and
     5    (4)  A  willful  failure  to comply with a court order conditioning or
     6  limiting access to a forensic report shall be contempt of court and  may
     7  be  punishable  as  such  as provided under section seven hundred fifty-
     8  three of the judiciary law. The court shall notify the parties and coun-
     9  sel on the record that a willful failure to comply with the court  order
    10  shall  be  contempt  of  court which may include punishment of a fine or
    11  imprisonment or both; and
    12    (5) Admissibility into evidence of the forensic report  or  the  court
    13  ordered evaluator's file shall be subject to objection of any party, his
    14  or  her  attorney or the attorney for the child pursuant to the rules of
    15  evidence and subject to the right of cross-examination.
    16    § 4. Section 651 of the family court act is amended by  adding  a  new
    17  subdivision (g) to read as follows:
    18    (g) Court ordered forensic evaluations in child custody and visitation
    19  proceedings.    Notwithstanding  the  provisions  of this section to the
    20  contrary, where a court order is issued for an  evaluation  or  investi-
    21  gation  of  the  parties  or a child by a forensic mental health profes-
    22  sional, a probation service, a child protective  service  or  any  other
    23  person  authorized  by  statute,  all of whom shall be considered "court
    24  ordered evaluators" for purposes of this subdivision, appointed  by  the
    25  court  to  assist  with the determination of child custody or visitation
    26  pursuant to this article or article four of this act,  for  purposes  of
    27  such court ordered forensic evaluations and investigations:
    28    (1)  Notwithstanding  section  one  hundred sixty-five of this act and
    29  section four hundred eight of the civil  practice  law  and  rules,  the
    30  provisions  and  limitations  of sections three thousand one hundred one
    31  and three thousand one hundred three of the civil practice law and rules
    32  shall apply; and
    33    (2) Any report or evaluation prepared by the court ordered  evaluator,
    34  to be known as a "forensic report" for the purposes of this subdivision,
    35  shall  be  confidential  and  kept  under seal except that, all parties,
    36  their attorneys and the attorney for the child shall  have  a  right  to
    37  receive a copy of any such forensic report upon receipt of such a report
    38  by  the  court,  subject to the provisions of section three thousand one
    39  hundred three of the civil practice law and rules. Provided, however, in
    40  no event shall a party or his or her counsel be prevented from access to
    41  or review of a forensic report in advance of  and  during  trial.    Any
    42  conditions or limitations imposed by the court pursuant to this subdivi-
    43  sion relating to disclosure of the forensic report shall accommodate for
    44  language  access  and disability. Upon application by counsel or a party
    45  the court shall permit a copy of the forensic report and a copy  of  the
    46  court ordered evaluator's files as provided for under paragraph three of
    47  this subdivision to be provided to any person retained to assist counsel
    48  or  any  party,  subject to the provisions of section three thousand one
    49  hundred three of the civil practice law and rules; and
    50    (3) Pursuant to a demand made under rule three  thousand  one  hundred
    51  twenty  of the civil practice law and rules, the court ordered evaluator
    52  shall provide to a party, his or her attorney or the  attorney  for  the
    53  child the entire file related to the proceeding including but not limit-
    54  ed  to,  all underlying notes, test data, raw test materials, underlying
    55  materials provided to or relied upon by the court ordered evaluator  and
    56  any records, photographs or other evidence for inspection and photocopy-

        A. 5621                             5
 
     1  ing,  subject  to  section three thousand one hundred three of the civil
     2  practice law and rules; and
     3    (4)  A  willful  failure  to comply with a court order conditioning or
     4  limiting access to a forensic report shall be contempt of court and  may
     5  be  punishable  as  such  as provided under section seven hundred fifty-
     6  three of the judiciary law. The court shall notify the parties and coun-
     7  sel on the record that a willful failure to comply with the court  order
     8  shall  be  contempt  of  court which may include punishment of a fine or
     9  imprisonment or both; and
    10    (5) Admissibility into evidence of the forensic report  or  the  court
    11  ordered evaluator's file shall be subject to objection of any party, his
    12  or  her  attorney or the attorney for the child pursuant to the rules of
    13  evidence and subject to the right of cross-examination.
    14    § 5. This act shall take effect on the ninetieth day  after  it  shall
    15  have  become  a  law,  provided, however, that effective immediately the
    16  chief administrator of the courts, with the approval of the  administra-
    17  tive  board  of the courts, is authorized and directed to promulgate any
    18  rules necessary to implement the provisions of this  act  on  or  before
    19  such effective date.
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