As if to underscore the difficulty in forging consensus on who should have access to forensic evaluations reports in child custody matters, and under what conditions, the Office of Court Administration yesterday advanced three competing proposals and is seeking bar input on which to adopt.
The issue has raised serious privacy and due process concerns, resulting in, at best, an uneasy truce and, at worst, perpetual conflict and inconsistency as practitioners and judges struggle to balance the interests of litigants, the welfare of the children and the sanctity of the patient-psychologist relationship.
Forensic reports generally consist of psychologist interviews with the child at the center of a custody tug-of-war, and in some cases the reports include interviews with parents, caregivers and others. The evaluation is generally ordered by the court for assistance in making the custody decision.
In the past two years, three separate approaches have evolved and the OCA yesterday put all three out for public comment, without expressing any preference:
• A December 2010 proposal by the New York State Bar Association’s Committee on Children and the Law. Under the state bar’s proposal, counsel for each party and for the child would be entitled to one copy of the forensic evaluation report, with orders to keep it confidential. The court would decide whether to provide copies to the parties themselves or just allow them to review the report at a secure location, for example, the attorney’s office if represented; the courthouse or another location if the party is pro so.
• An October 2012 proposal by the court system’s Matrimonial Practice Advisory Committee. The committee would permit counsel to obtain a copy of the report after executing a signed non-disclosure statement. Represented parties would be permitted to read the report and take notes in their attorney’s office; unrepresented parties would be allowed to review the report in a secure location after executing a non-disclosure affidavit. The judge would have discretion to provide a copy of the report to a mental health professional, upon an application by counsel or a party, who signed a non-disclosure form.
• A November 2012 proposal by the court system’s Family Court Advisory and Rules Committee (FCARC). In contrast to the Matrimonial Practice Advisory Committee, the Family Court proposal would require courts to devise terms of access on a case-by-case basis to ensure “meaningful and thorough access consistent with due process.”
The two court system proposals emerged after the Appellate Division, First Department, addressed the issue in Sonbuchner v. Sonbuchner, 96 AD3d 566, where the panel held that “counsel and pro se litigants should be given access to the forensic report under the same conditions.” Sonbuchner involved a pro se litigant who was not allowed access to a forensic expert’s report before the expert testified.
The court said Bronx Supreme Court Justice Robert Torres (See Profile) erred in denying the husband access to the report, but held the error harmless. The majority found that the husband was not prejudiced because he had an opportunity to review the forensic report with an attorney who represented him earlier in the case and was offered a chance to review it with a court-appointed social worker (NYLJ, June 27, 2012).
Justice David Saxe (See Profile), in dissent, agreed that the husband was entitled to the report, but would have ordered a new trial.
“Lacking adequate access to the expert’s report, the pro se plaintiff had no hope of successfully cross-examining the expert,” Saxe wrote.
Timothy Tippins, an adjunct professor at Albany Law School, member of the faculty of the American Academy of Forensic Psychology and a Law Journal columnist who has written extensively about the issue (NYLJ, Sept. 6, 2012), said yesterday that “nothing short of full and unfettered access to both the report and the complete file of the evaluator is sufficient to prepare a proper cross-examination.”
Tippins noted that a 2006 report to the chief judge by the New York State Matrimonial Commission endorsed that approach (www. nycourts.gov/reports/matrimonial commission report.pdf).
“Attorneys should be able to share the report and the evaluator’s file with experts engaged in the case, both testimonial experts and trial consultants who assist in preparation without a view toward them taking the stand,” Tippins said. “Attorneys should be able to do so without having to seek specific permission from the court so that they do not have to reveal to the opposition with whom they may be consulting for these purposes which can be a tip-off as to trial strategy.”
Anyone interested in commenting on the various proposals can email ForensicReports@nycourts.gov or write to John McConnell, counsel, Office of Court Administration, 25 Beaver St., 11th Floor, New York, N.Y., 10004. Comments must be received by March 8.
@|John Caher can be contacted at email@example.com.