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.
STATE OF NEW YORK
________________________________________________________________________
8342--A
2013-2014 Regular Sessions
IN ASSEMBLY
December 27, 2013
___________
Introduced by M. of A. WEINSTEIN, WEPRIN -- Multi-Sponsored by -- M. of
A. BRAUNSTEIN, BRONSON, CLARK, COOK, FARRELL, GLICK, JAFFEE, MARKEY,
MILLMAN, OTIS, SEPULVEDA, SKARTADOS -- read once and referred to the
Committee on Judiciary -- recommitted to the Committee on Judiciary in
accordance with Assembly Rule 3, sec. 2 -- reported and referred to
the Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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 of the parties or a child by a forensic mental health professional or
6 any other person, both of whom shall be considered "court ordered evalu-
7 ators" for purposes of this subdivision, appointed by the court to
8 assist with the determination of child custody or visitation pursuant to
9 this article, for purposes of such court ordered forensic evaluations:
10 (1) Any report or evaluation prepared by the court ordered evaluator,
11 to be known as a "forensic report" for the purposes of this subdivision,
12 shall be confidential and kept under seal except that, all parties,
13 their attorneys and the attorney for the child shall have a right to
14 receive a copy of any such forensic report upon receipt of such a report
15 by the court, subject to the provisions of section three thousand one
16 hundred three of the civil practice law and rules. Provided, however, in
17 no event shall a party or his or her counsel be prevented from access to
18 or review of a forensic report in advance of and during trial. Any
19 conditions or limitations imposed by the court pursuant to this subdivi-
20 sion relating to disclosure of the forensic report shall accommodate for
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13341-05-4
A. 8342--A 2
1 language access and disability. Upon application by counsel or a party
2 the court shall permit a copy of the forensic report and a copy of the
3 court ordered evaluator's files as provided for under paragraph two of
4 this subdivision to be provided to any person retained to assist counsel
5 or any party, subject to the provisions of section three thousand one
6 hundred three of the civil practice law and rules; and
7 (2) Pursuant to a demand made under rule three thousand one hundred
8 twenty of the civil practice law and rules, the court ordered evaluator
9 shall provide to a party, his or her attorney or the attorney for the
10 child the entire file related to the proceeding including but not limit-
11 ed to, all underlying notes, test data, raw test materials, underlying
12 materials provided to or relied upon by the court ordered evaluator and
13 any records, photographs or other evidence for inspection and photocopy-
14 ing, subject to the provisions of section three thousand one hundred
15 three of the civil practice law and rules; and
16 (3) A willful failure to comply with a court order conditioning or
17 limiting access to a forensic report shall be contempt of court and may
18 be punishable as such as provided under section seven hundred fifty-
19 three of the judiciary law. The court shall notify the parties and coun-
20 sel on the record that a willful failure to comply with the court order
21 shall be contempt of court which may include punishment of a fine or
22 imprisonment or both; and
23 (4) Admissibility into evidence of the forensic report or the court
24 ordered evaluator's file shall be subject to objection of any party, his
25 or her attorney or the attorney for the child pursuant to the rules of
26 evidence and subject to the right of cross-examination.
27 § 2. Subdivision 1 of section 240 of the domestic relations law is
28 amended by adding a new paragraph (a-3) to read as follows:
29 (a-3) Court ordered forensic evaluations in proceedings involving
30 child custody and visitation. Where a court order is issued for an eval-
31 uation of the parties or a child by a forensic mental health profes-
32 sional or any other person, both of whom shall be considered "court
33 ordered evaluators" for purposes of this subdivision, appointed by the
34 court to assist with the determination of child custody or visitation
35 pursuant to this subdivision, for purposes of such court ordered foren-
36 sic evaluations:
37 (1) Any report or evaluation prepared by the court ordered evaluator,
38 to be known as a "forensic report" for the purposes of this paragraph,
39 shall be confidential and kept under seal except that, all parties,
40 their attorneys and the attorney for the child shall have a right to
41 receive a copy of any such forensic report upon receipt of such a report
42 by the court, subject to the provisions of section three thousand one
43 hundred three of the civil practice law and rules. Provided, however, in
44 no event shall a party or his or her counsel be prevented from access to
45 or review of a forensic report in advance of and during trial. Any
46 conditions or limitations imposed by the court pursuant to this subdivi-
47 sion relating to disclosure of the forensic report shall accommodate for
48 language access and disability. Upon application by counsel or a party
49 the court shall permit a copy of the forensic report and a copy of the
50 court ordered evaluator's files as provided for under subparagraph two
51 of this paragraph to be provided to any person retained to assist coun-
52 sel or any party, subject to the provisions of section three thousand
53 one hundred three of the civil practice law and rules; and
54 (2) Pursuant to a demand made under rule three thousand one hundred
55 twenty of the civil practice law and rules, the court ordered evaluator
56 shall provide to a party, his or her attorney or the attorney for the
A. 8342--A 3
1 child the entire file related to the proceeding including but not limit-
2 ed to, all underlying notes, test data, raw test materials, underlying
3 materials provided to or relied upon by the court ordered evaluator and
4 any records, photographs or other evidence for inspection and photocopy-
5 ing, subject to the provisions of section three thousand one hundred
6 three of the civil practice law and rules; and
7 (3) A willful failure to comply with a court order conditioning or
8 limiting access to a forensic report shall be contempt of court and may
9 be punishable as such as provided under section seven hundred fifty-
10 three of the judiciary law. The court shall notify the parties and coun-
11 sel on the record that a willful failure to comply with the court order
12 shall be contempt of court which may include punishment of a fine or
13 imprisonment or both; and
14 (4) Admissibility into evidence of the forensic report or the court
15 ordered evaluator's file shall be subject to objection of any party, his
16 or her attorney or the attorney for the child pursuant to the rules of
17 evidence and subject to the right of cross-examination.
18 § 3. Subdivision (c) of section 251 of the family court act is relet-
19 tered subdivision (d) and a new subdivision (c) is added to read as
20 follows:
21 (c) Court ordered forensic evaluations in child custody and visitation
22 proceedings. Notwithstanding the provisions of this section to the
23 contrary, where a court order is issued for an evaluation of the parties
24 or a child by a forensic mental health professional or any other person,
25 both of whom shall be considered "court ordered evaluators" for purposes
26 of this subdivision, appointed by the court to assist with the determi-
27 nation of child custody or visitation pursuant to article four or six of
28 this act, for purposes of such court ordered forensic evaluations:
29 (1) Notwithstanding section one hundred sixty-five of this act and
30 section four hundred eight of the civil practice law and rules, the
31 provisions and limitations of sections three thousand one hundred one
32 and three thousand one hundred three of the civil practice law and rules
33 shall apply; and
34 (2) Any report or evaluation prepared by the court ordered evaluator,
35 to be known as a "forensic report" for the purposes of this subdivision,
36 shall be confidential and kept under seal except that, all parties,
37 their attorneys and the attorney for the child shall have a right to
38 receive a copy of any such forensic report upon receipt of such a report
39 by the court, subject to the provisions of section three thousand one
40 hundred three of the civil practice law and rules. Provided, however, in
41 no event shall a party or his or her counsel be prevented from access to
42 or review of a forensic report in advance of and during trial. Any
43 conditions or limitations imposed by the court pursuant to this subdivi-
44 sion relating to disclosure of the forensic report shall accommodate for
45 language access and disability. Upon application by counsel or a party
46 the court shall permit a copy of the forensic report and a copy of the
47 court ordered evaluator's files as provided for under paragraph three of
48 this subdivision to be provided to any person retained to assist counsel
49 or any party, subject to the provisions of section three thousand one
50 hundred three of the civil practice law and rules; and
51 (3) Pursuant to a demand made under rule three thousand one hundred
52 twenty of the civil practice law and rules, the court ordered evaluator
53 shall provide to a party, his or her attorney or the attorney for the
54 child the entire file related to the proceeding including but not limit-
55 ed to, all underlying notes, test data, raw test materials, underlying
56 materials provided to or relied upon by the court ordered evaluator and
A. 8342--A 4
1 any records, photographs or other evidence for inspection and photocopy-
2 ing, subject to the provisions of section three thousand one hundred
3 three of the civil practice law and rules; and
4 (4) A willful failure to comply with a court order conditioning or
5 limiting access to a forensic report shall be contempt of court and may
6 be punishable as such as provided under section seven hundred fifty-
7 three of the judiciary law. The court shall notify the parties and coun-
8 sel on the record that a willful failure to comply with the court order
9 shall be contempt of court which may include punishment of a fine or
10 imprisonment or both; and
11 (5) Admissibility into evidence of the forensic report or the court
12 ordered evaluator's file shall be subject to objection of any party, his
13 or her attorney or the attorney for the child pursuant to the rules of
14 evidence and subject to the right of cross-examination.
15 § 4. Section 651 of the family court act is amended by adding a new
16 subdivision (g) to read as follows:
17 (g) Court ordered forensic evaluations in child custody and visitation
18 proceedings. Notwithstanding the provisions of this section to the
19 contrary, where a court order is issued for an evaluation of the parties
20 or a child by a forensic mental health professional or any other person,
21 both of whom shall be considered "court ordered evaluators" for purposes
22 of this subdivision, appointed by the court to assist with the determi-
23 nation of child custody or visitation pursuant to this article or arti-
24 cle four of this act, for purposes of such court ordered forensic evalu-
25 ations:
26 (1) Notwithstanding section one hundred sixty-five of this act and
27 section four hundred eight of the civil practice law and rules, the
28 provisions and limitations of sections three thousand one hundred one
29 and three thousand one hundred three of the civil practice law and rules
30 shall apply; and
31 (2) Any report or evaluation prepared by the court ordered evaluator,
32 to be known as a "forensic report" for the purposes of this subdivision,
33 shall be confidential and kept under seal except that, all parties,
34 their attorneys and the attorney for the child shall have a right to
35 receive a copy of any such forensic report upon receipt of such a report
36 by the court, subject to the provisions of section three thousand one
37 hundred three of the civil practice law and rules. Provided, however, in
38 no event shall a party or his or her counsel be prevented from access to
39 or review of a forensic report in advance of and during trial. Any
40 conditions or limitations imposed by the court pursuant to this subdivi-
41 sion relating to disclosure of the forensic report shall accommodate for
42 language access and disability. Upon application by counsel or a party
43 the court shall permit a copy of the forensic report and a copy of the
44 court ordered evaluator's files as provided for under paragraph three of
45 this subdivision to be provided to any person retained to assist counsel
46 or any party, subject to the provisions of section three thousand one
47 hundred three of the civil practice law and rules; and
48 (3) Pursuant to a demand made under rule three thousand one hundred
49 twenty of the civil practice law and rules, the court ordered evaluator
50 shall provide to a party, his or her attorney or the attorney for the
51 child the entire file related to the proceeding including but not limit-
52 ed to, all underlying notes, test data, raw test materials, underlying
53 materials provided to or relied upon by the court ordered evaluator and
54 any records, photographs or other evidence for inspection and photocopy-
55 ing, subject to section three thousand one hundred three of the civil
56 practice law and rules; and
A. 8342--A 5
1 (4) A willful failure to comply with a court order conditioning or
2 limiting access to a forensic report shall be contempt of court and may
3 be punishable as such as provided under section seven hundred fifty-
4 three of the judiciary law. The court shall notify the parties and coun-
5 sel on the record that a willful failure to comply with the court order
6 shall be contempt of court which may include punishment of a fine or
7 imprisonment or both; and
8 (5) Admissibility into evidence of the forensic report or the court
9 ordered evaluator's file shall be subject to objection of any party, his
10 or her attorney or the attorney for the child pursuant to the rules of
11 evidence and subject to the right of cross-examination.
12 § 5. This act shall take effect on the ninetieth day after it shall
13 have become a law, provided, however, that effective immediately the
14 chief administrator of the courts, with the approval of the administra-
15 tive board of the courts, is authorized and directed to promulgate any
16 rules necessary to implement the provisions of this act on or before
17 such effective date.