Alton L. Abramowitz ()
Fundamental constitutional rights have received comprehensive ongoing recognition in the criminal law arena, but in the area of divorce law, particularly when the issue of a parent’s right to custody of his or her child is at stake, those rights are often abridged and overlooked. It is indisputable that the right to custody is a “fundamental right,” as held by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000).
Particularly vexing for litigants and lawyers alike are the restrictions placed by our courts and our judges on access to the reports of mental health professionals in child custody matters. These reports, setting forth the results of court-ordered child custody evaluations of a family in the midst of oftentimes crisis-laden marital dissolution proceedings, have been the subject of criticism on a variety of bases. For example, there have been complaints that such reports treat pro se litigants in a different, less consistent manner than parents who are represented by counsel, which would provide represented parents with an unfair advantage in such custody proceedings given the weight that may be attached by a judge to the report of a mental health professional.
There have also been complaints regarding the limitations placed on the discovery of the forensic evaluator’s file and raw test and other data (see, “When Is Disclosure of Forensic Evaluator’s ‘Raw’ File Appropriate?” NYLJ, Oct. 31, 2013), including the prohibition of the use of the discovery devices contained in Article 31 of the Civil Practice Law and Rules (CPLR), including, for example, the ability to subpoena the file of the forensic evaluator or to take his or her deposition. There is an oft-voiced concern, in this respect, that practitioners with cases in which a mental health professional has submitted a report are in a position of having to prepare for trial with one hand tied behind their backs, in that the forensic evaluator’s file is generally not made available for review until trial, and there is no opportunity to explore the forensic evaluator’s findings, under oath, until he or she is on the stand at trial. Further, pretrial discovery of the underlying file and raw test and other data may actually assist in settling at least some of the custody matters that go to trial, such restrictions having the effect, in such cases, of prolonging the resolution for the children involved.
The simple fact is that the New York courts have repeatedly turned a blind eye to the fundamental right of divorcing parents to fully and properly prepare to confront the evidence that will be presented against them at a custody trial. The rules that presently govern access to forensic reports are not only often restrictive in nature, but can vary from county to county, exacerbating restrictiveness with inconsistency and, thereby, causing even more discontent with the present system. For example, possession of the forensic report is generally restricted to the attorneys for the party and, where one has been appointed, the attorney for the child(ren), but the attorneys are not permitted to photocopy the report.
In some areas the parties are permitted to review the report—although only in their attorney’s office. In other areas they are permitted only to discuss the contents of the report with their counsel, which could lead to unwarranted anxiety and concern by a party about whether or not he or she is getting a full and accurate picture of the report’s contents. Parents who are pro se parents are generally required to review the report in a courtroom or under the watchful eye of an employee of the court system, a setting which could be fraught with anxiety or haste, thereby perhaps once again disadvantaging the pro se litigant in preparing his or her matter for trial.
A further potentially unnecessary restriction—which also has the effect of letting inaccurate findings in reports go unnoticed and uncorrected—is the prohibition imposed on counsel and litigants against showing the report to their own retained mental health experts without court consent or, indeed, showing it to any third party (since a party is not permitted to retain a copy of the report). This restriction effectively prohibits parties from showing the report to individuals who are quoted therein in order to ascertain whether the report accurately reflects what those individuals have said, a situation fraught with the possibility that a custody ruling could be made in reliance upon a forensic report which is based upon significant factual error (or even simple misunderstanding).
Potential Legislative Solution
In an effort to address the above shortcomings, the chair of the Assembly’s Committee on the Judiciary, Assemblywoman Helene Weinstein, introduced Bill No. A08342 shortly before the end of 2013. The stated purpose of this bill is to “provide for uniform access to court ordered forensic mental health evaluation reports and the underlying data by litigants, their counsels and the attorney for the child in child custody and visitation cases.” Most significantly, and touching upon the concerns addressed above, one of the stated justifications for the bill is that “[w]ithout the ability to thoroughly examine the report and challenge its contents if need be, a litigant’s right to a fair trial is severely hampered.”
The bill would amend Sections 70 and 240 of the Domestic Relations Law (DRL) “to provide that where a court order 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 copy of the forensic evaluator’s file, including supporting records and data, subject to the issuance of a protective order pursuant to section 3103 of the [CPLR].” The legislation would also allow persons “retained to assist counsel or any party” to be provided with a copy of the report upon application to the court for its permission for that purpose.
Consequently, the bill constitutes a balancing act, permitting greater access to the report and the underlying findings and raw data to the interested persons (i.e., the parties and the attorneys) on the one hand, while ensuring—in the same manner as a protective order issued pursuant to Civil Practice Law and Rules Section 3103—that such documents and information remain confidential and so cannot be used to embarrass, harass, or annoy the litigants (or the children who are the subject of the proceeding). Significantly, the bill provides, “the court [will be] required to give notice to the parties and counsel, on the record, that a failure to comply with a court order conditioning or limiting disclosure of the forensic report or the forensic evaluator’s file shall be a contempt of court, which may include punishment of a fine or imprisonment or both.”
Since the precise “punishment” is not articulated in the proposed bill, one open question is the extent to which the judiciary—individually and collectively—will be willing to go in order to punish violations of confidentiality and, by extension, to defer potential future violations. The imposition of punishment for such a violation would, itself, be a delicate balancing act, in the divorce and family law arenas, where judges can be reticent to impose sanctions for even egregious conduct out of concern that doing so will further inflame an already contentious proceeding, rendering settlement impossible. Indeed, the fact that custody proceedings involve, by their very nature, relationships between parents which will continue for years into the future, may contribute to a potential judicial reticence against imposing punishment that could be perceived as too severe and alienating. In the event that the bill is passed, only time will tell if this outcome occurs.
Evidence and Discovery
The proposed legislation also provides that the evidentiary rules regarding admissibility shall apply to the forensic report and the file of the forensic evaluator, and that the direct testimony of the forensic evaluator is subject to cross-examination. Thus, the legislation eliminates the practice of some members of the judiciary of admitting the report into evidence without first requiring that an evidentiary foundation be established, as is required for other sorts of expert reports. Effectively, at trial, one of the parties, or the attorney for the child, will need to become the proponent of the report by taking on the duties of laying the foundation for the admission of the report into evidence. This requirement would better protect the parties and children involved in custody litigation by ensuring the propriety and reliability of the forensic report upon which a court may base its custody determination.
Pursuant to the proposed bill, Sections 251 (addressing physical and mental examinations for parents and persons legally responsible for the care of a child) and 651 (with respect to jurisdiction over custody and visitation proceedings) of the Family Court Act (FCA), would also be amended to provide that Sections 3101 and 3103 of the CPLR, providing for pre-trial disclosure, would be available in Family Court custody and visitation proceedings where a forensic evaluation has been performed, regardless of the restrictions of FCA Section 165 (with respect to the procedural rules applicable in various Family Court proceedings) and CPLR Section 408 (requiring court permission to conduct most disclosure in special proceedings). While not a guarantee that discovery would be permitted in every case involving a forensic report, the proposed legislation would open the door to that possibility in appropriate matters, an outcome which could be of real utility to custody litigants—and to the court—by permitting a further exploration of the underlying basis for the report’s findings and conclusions.
Despite addressing a bill which, effectively, provides for discovery (or the possibility of disclosure) in custody proceedings, there is no discussion in the Memo of Assembly Member Weinstein of the potential for depositions of forensic evaluators in such proceedings (permitted in certain other jurisdictions). However, a broad reading of the legislative proposal should lead to the conclusion that examinations before trial of forensic custody evaluators are permissible. Given that, as noted above, one of the stated justifications for the bill is that “[w]ithout the ability to thoroughly examine the report and challenge its contents if need be, a litigant’s right to a fair trial is severely hampered,” it stands to reason that part of a litigants ability to “thoroughly examine the report and challenge its contents” is the ability to depose the forensic evaluator.
Further, permitting pretrial depositions of forensic evaluators could potentially assist in narrowing the issues for trial and assist attorneys in determining whether to stipulate to the admissibility of part or all of the report at trial, creating a substantial and significant economy of limited judicial resources. In addition, the possibility not only of cross-examination at trial, but of a more thorough exploration of his or her report and the underlying data relied upon through a pretrial deposition, will presumably result in increased efforts by forensic experts to be as accurate and thorough as possible in their reports and in the preliminary work leading to that report.
Weinstein’s Bill Memo concludes its description of the bill pending before the Legislature as follows: “In sum, this proposal balances important due process rights of all litigants in custody and visitation actions against any countervailing concerns relating to a harmful impact upon subject children that may result from unfettered access to forensic reports and under lying data.” Should it succeed in making its way through the legislative process and be enacted, the bill will go a long way toward silencing the criticism which has been leveled, with increasing volume in recent years, against the restrictive, and inconsistent, access of litigants and lawyers to the information which is often critical to a court’s determination of custody.
Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn and is immediate past national president of the American Academy of Matrimonial Lawyers; Leigh Baseheart Kahn, a partner at Mayerson Abramowitz and a Fellow of the American Academy of Matrimonial Lawyers, assisted in the preparation of this column.