The need for uniformity in the availability and dissemination of child custody forensic reports has long been discussed among matrimonial attorneys given the widespread inconsistency among judges in our Supreme and Family courts on this issue. It is then heartening to see that legislation has been offered which seeks consistency, permits discovery and provides penalties for violation of any restrictions on dissemination placed by the court.
Alton L. Abramowitz’s detailed discussion of this legislation, which has been proposed by Assemblywoman Helene Weinstein, offers many reasons why the time is long overdue for this legislation. (“Legislative Effort Over Disclosing Forensic Reports,” NYLJ, Jan. 31). While the bill needs adjustments and tweaks (as most do) it is an excellent place to start.
One issue for further elaboration, and in which there is a difference of opinion among practitioners, is the extent to which the litigants themselves (particularity unrepresented litigants) should be restricted from retaining copies of the report and data, which could then find their way to the children and the public, either directly or though outlets like social media.
The legislation does provide for the court’s ability to create appropriate restrictions (as well as a contempt finding for violation of those restrictions) through resort to a protective order under CPLR 3103.
However, CPLR 3103 provides for limitations on the use of discovery devices and does not appear to fit all of the purposes for which the Weinstein bill intends it, without amendment.
Given that the use of forensic reports has been so widespread and that courts are often swayed by its findings, notwithstanding the many flaws in the process—the lack of uniform access to the report and underlying data, and the historic inability to subject the forensic expert to pretrial interrogation—we now have the opportunity to get legislation that corrects many longstanding problems. It still needs some adjustments, but the time is ripe to make a significant advance in custody litigation.
Garden City, N.Y.