A08342 Summary:

BILL NOA08342A
 
SAME ASNo same as
 
SPONSORWeinstein (MS)
 
COSPNSRWeprin
 
MLTSPNSRBraunstein, Bronson, Clark, Cook, Farrell, Glick, Jaffee, Markey, Millman, Otis, Sepulveda, Skartados
 
Amd SS70 & 240, Dom Rel L; amd SS251 & 651, Fam Ct Act
 
Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings.
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A08342 Memo:

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.
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A08342 Text:



 
                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.
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