Editors’ Note: This article has been updated to reflect a Correction.
With three competing proposals on who should have access to forensic evaluation reports in child custody cases, and under what terms, the Office of Court Administration asked to hear from the bench and the bar before promulgating rules.
It got an earful.
The forensic reports, which typically consist of psychologist interviews with the child and often with the parents or other caregivers, are frequently relied on by judges in making custody determinations. But questions abound over the appropriate use of those evaluations and their potential to determine the course of a child’s life.
Should attorneys show the reports to their clients, or just discuss the contents? Do matrimonial litigants have a due process right to see not only all reports, but any notes or data used by the evaluator? If the reports are disclosed to the parties, will children and abused spouses be less forthcoming? How can the courts prevent dissemination or publication of the highly sensitive evaluations? Should children ever see the reports?
Attorneys have been debating those topics for a number of years, but the issue took center stage with a recent ruling from the Appellate Division, First Department, and three different proposals for a court rule.
The First Department ruling, Sonbuchner v. Sonbuchner, 96 AD3d 566 (2012), involved a pro se litigant who was not allowed access to a forensic expert’s report before the expert testified.
The majority said Bronx Supreme Court Justice Robert Torres (See Profile) erred in denying the husband access to the report and concluded that "counsel and pro se litigants should be given access to the forensic report under the same conditions." But the court held the error harmless, over the objections of Justice David Saxe (See Profile), who said that without the report, the unrepresented husband "had no hope of successfully cross-examining the expert" (NYLJ, June 27, 2012).
Even before Sonbuchner was decided, the New York State Bar Association’s Committee on Children and the Law was stumping for a court rule in which 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. Under the state bar proposal, judges would decide whether to provide copies to the parties themselves or just allow them to review the report at a secure location, such as an attorney’s office or if the party was not represented, a courthouse.
Since Sonbuchner, the court system itself floated rival proposals, one advanced by the Matrimonial Practice Advisory Committee and the other by the Family Court Advisory and Rules Committee.
The Matrimonial Practice Advisory Committee would permit counsel to obtain a copy of the report after executing a signed non-disclosure statement. Parties would be able to read the report and take notes after executing a non-disclosure affidavit. In contrast, the Family Court Advisory and Rules Committee would allow courts to craft terms of access on a case-by-case basis.
In January, OCA sought comments without expressing a preference for any of the three proposals.
Approximately 30 individuals and organizations responded, expressing concerns ranging from privacy to due process to the best interests of the child to whether the evaluators have far too much sway over custody disputes. Judges and judicial associations, attorneys and bar groups, psychologists and advocates weighed-in on what is clearly a hot-button issue in matrimonial and family practice.
The responses, which the New York Law Journal obtained via a Freedom of Information Law request, reveal deep divisions with nuanced legal, psychological, sociological and practical implications, and no real consensus on the best way to go.
Several commentators favored the Matrimonial Practice Advisory proposal as the most balanced solution, but many said that plan is far from perfect and offered a number of caveats and suggestions. Several judges favored the plan of the Family Court Advisory and Rules Committee, whose proposal affords the most discretion to the judge.
The pre-Sonbuchner state bar solution seemed to generate little support, with respondents generally preferring one of the other two remedies on the table.
Interestingly, none of the three proposals address what is perhaps the most difficult issue—whether and under what circumstances a child should be shown or apprised of the contents of an evaluation. Regardless, many respondents stated an opinion on that thorny concern.
Lawyers for Children and the Children’s Law Center would allow the attorney for the child to review the report with the client.
"The attorney for the child, like all other attorneys in the proceeding, must be permitted to review and/or discuss the report with his/her client." Karen Freedman, executive director of Lawyers for Children, a Manhattan-based group providing legal and social services to children at the center of custody, visitation and other disputes, said in a letter to OCA.
However, Freedman said neither the child, nor any party, should be given a copy, only the opportunity to review it in a confidential setting.
But most commentators who addressed the issue opposed disclosing the contents to a child.
"Providing children with access to the report would have a devastatingly chilling effect on our clients’ willingness to provide critical information about the history of domestic abuse perpetrated against them by the other parent, often including sexual violence, for fear of exposing children to it," said Dorchen Leidholdt, director of the Center for Battered Women’s Legal Services at the Sanctuary for Families in Manhattan.
The New York County Lawyers’ Association’s Matrimonial Law Section told OCA that "allowing any child to review or read the forensic report would be detrimental to the child. Accordingly, if any rule is to be implemented regarding the child’s access to the forensic materials, it should preclude the child from reading such materials."
Supreme Court Justice Sidney Strauss of Queens (See Profile) recalled an incident that he said illustrates the danger of apprising youth of the contents of an evaluator’s report.
"Some years ago, when a teen-ager, the subject of a custody dispute, was able to learn of the statements made about him to the forensic evaluator, [he] became so upset that he committed suicide," said Strauss, who had a matrimonial practice for 35 years and, as a judge, has spent the past seven years in a dedicated matrimonial part.
‘Total Transparency’ Urged
On the broader issue, matrimonial law expert Timothy Tippins and psychologist Jeffrey Wittmann of Albany called for "total transparency" and ensuring that attorneys have "unfettered access to the forensic report and to all underlying data" in the evaluating expert’s file.
"While some make the argument that the child-related nature of the information contained in forensic reports calls for a level of protection against disclosure beyond that which is demanded in other courts of law, we would argue just the opposite," argued Tippins, a Law Journal columnist who has written extensively on the issue, and Wittmann. "It is precisely because custody and access issues have profound implications for a child’s future that it is essential for the child’s own attorney and their parents’ attorneys be able to fully and easily explore the forensic report and its underlying data to insure that their lives will not be affected by an evaluative process that is substantially flawed with respect to its underlying data, method, or reasoning."
Family Court Judge Michael Nenno of Cattaraugus County (See Profile) agrees with Tippins that "nothing short of a full and unfettered access to both the report and complete file of the evaluator is sufficient to prepare a proper cross examination."
But attorney Elaine Miller of Great Neck would not allow attorneys to show the report to the litigants.
"Tippins and those who agree with him are looking at forensic reports as trial counsel," Miller wrote in an email to OCA. "I must always evaluate the situation as an attorney for the child who may have spilled some unsavory beans about the parents to the evaluator, and the consequence of the parent knowing of the revelation on the parent-child relationship."
The New York City Bar’s official position is that parents should not be provided with a copy "given the harm that can be done" and that "would not be undone by any sanction." However, the group’s Family Court and Family Law Committee would give pro se litigants a copy after making them sign a non-disclosure affidavit.
Robert Lonski, administrator of the Assigned Counsel Program of the Erie County Bar Association, found all three proposals flawed, with none sufficiently protecting due process rights.
"Access to custodial evaluation reports should not be subject to judicial approval on a case-by-case basis," Lonski said in a letter. "To do so would inevitably result in inconsistency among like-situated parties who are before different judges, and in any event would compromise the…ability to prepare adequately to cross examine the author of the report."
Several Family Court judges endorsed the case-by-case proposal of the Family Court Advisory and Rules Committee.
Family Court Judge Conrad Singer in Nassau County (See Profile), president of the Association of Judges of the Family Court of the State of New York, argues that the committee proposal is the only one that "fairly represents the rights and interests of all litigants, in all cases and places the pro se litigants on parity with their opposing party."
"Not only do the two other proposals take away appropriate judicial discretion, they assume that a one-sided rule is fair for all litigants, in all courts, throughout this state," Singer said in a letter to OCA Counsel John McConnell.
Bronx Family Court Judge Carol Sherman (See Profile), president of the New York City Family Court Judges Association, said the Family Court advisory committee’s proposal "allows judges to frame and order procedures that provide meaningful and complete access to the forensic evaluation report prior to trial, and, at the same time, to take into consideration the need for confidentiality to protect the children and parties."
Monroe County Family Court Judge Joan Kohout (See Profile) said "the court should have the flexibility to set reasonable rules regarding the reports, such as prohibiting disclosure of the report to others, especially the child."
On the other hand, the Lawyers Committee Against Domestic Violence, a coalition of attorneys in the New York City metropolitan area, found the Family Court advisory committee’s proposal the "most problematic" of the three.
"Practitioners and litigants benefit from a consistent and predictable system that does not vary from one court to another and does not leave access to forensic reports in the sole discretion of each individual judge," the group said in a letter from co-chairs Barbara Kryszko of Sanctuary for Families and Kate Wurmfeld of New York Legal Assistance Group. "We believe that in the interest of due process, a uniform procedure for the dissemination of forensic evaluations should be adopted."
Nancy Erickson, a Brooklyn attorney who is on the state bar subcommittee of the Committee on Children and the Law, generally endorsed the organization’s position. However, she expressed concern over the "enormous" power of a custody evaluator and the potential for incompetence and corruption.
"The New York State Education Department’s Office of Professional Discipline does not accept complaints against psychologists who are appointed by the court to conduct custody evaluations," Erickson said. "Therefore, there is no way to rid the judicial system of custody evaluators who are untrained, unprofessional or even corrupt."
Erickson said the evaluations of battered women are notoriously misleading and she expressed concern over the lack of standards.
"Custody evaluations, as currently practiced, are not limited by the court, they are in the unbridled discretion of the evaluator," Erickson wrote. "Any test can be given, without consideration of their reliability or validity…Any questions can be asked, regardless of their relevance or lack thereof…Any documents can be viewed (or not viewed, as the evaluator decides). Violations of the rules of evidence abound. Any ‘collaterals’ can be questioned, not under oath and not recorded, resulting in hearsay and even hearsay on hearsay."
David Bookstaver, a spokesman for the Office of Court Administration, said it is unclear when the Administrative Board of the Courts, which consists of the chief administrative judge and the four Appellate Division presiding justices, will formulate a rule.
"There is as wide range of opinion which will be helpful as the board considers this issue, which is exactly the reason we put difficult issues out for public comment," Bookstaver said.
@|John Caher can be contacted at firstname.lastname@example.org.