Timothy M. Tippins ()
One of the most significant and long-standing problems in custody litigation is the lack of transparency in the forensic process. Emblematic of the opaqueness that befogs the process is the chaos surrounding what should be the simplest of tasks, namely, gaining access to the evaluator’s report and file. While enlightened courts recognize that due process requires full disclosure of the report and primary data,1 others impose restrictions that are nothing short of draconian.2 Time and again reform proposals have been put before the judicial administration,3 including one from the Chief Judge’s own Matrimonial Commission.4 And time and again the judicial administration has responded with thunderous silence. In the face of this administrative dithering, the Legislature now seems poised to usher in long-overdue reform.
Helene E. Weinstein, chair of the Assembly Standing Committee on the Judiciary, has put forth a bill5 which, if passed, will bring a higher level of transparency to the forensic process. Given that the transparency drum has been beaten repeatedly in this column for more than a decade,6 longtime readers will hardly be surprised that this writer supports the Weinstein bill. This article will examine the proposed legislation, potential concerns and possible tweaks that might improve the bill.
The foundation of the Weinstein bill is a legislative recognition that a parent’s interest in the custody of his or her children is “one of the oldest and most fundamental liberty interests recognized by law” which is entitled to “appropriate due process protections and evidentiary safeguards.”7 Its centerpiece is the mandate that there be “uniform access to court ordered forensic mental health evaluation reports and underlying data by litigants, their counsels and the attorney for the child.”8 It requires disclosure of the evaluator’s entire file “including but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court ordered evaluator and any records, photographs or other evidence.” Underscoring the importance of this provision the legislation specifically provides that “there shall be a rebuttable presumption” that the file is discoverable. The Bill Summary succinctly states the rationale for such broad disclosure:
Obtaining forensic reports without the ability to examine the data upon which the reports are based is inadequate for a complete assessment of the reports. Without 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.9
This view finds long-standing support from within the forensic community as well. Jeffrey P. Wittmann, a prominent forensic psychologist and author, has stated: “There is no doubt whatever that every piece of data in the evaluator’s file must be painstakingly reviewed and analyzed if the opportunity to cross-examine is to be meaningful.”10
David A. Martindale, a notable forensic expert and prolific writer, has expressed a similar view: “Without access to an evaluator’s full file, a cross-examining attorney is placed at a significant disadvantage in her endeavors to shed light on deficiencies in an evaluator’s work.”11
It is worth noting here as well that New York’s restrictive disclosure policy postures the state as a true outlier. Broad disclosure is elsewhere the rule and has been for decades. Compared to other states, the Weinstein bill represents a but modest step in the right direction.
Sharing Report with Experts
The Weinstein bill further provides 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.”12 In support, the Bill Summary notes the importance of attorneys getting the “help of professionals with specific expertise” to analyze the report, to challenge its accuracy, and to “prepare for an effective cross-examination of the forensic evaluator.”13
Given the importance of sharing forensic materials with engaged experts, legislative recognition of this reality is most welcomed. Yet, a potential problem lurks in the details. As presently crafted the legislation requires an attorney to apply to the court for authorization to share the report and file with experts. Because the bill does not authorize an ex parte application, it would have to be served upon the opposing party and the attorney for the child. If the application must disclose the identities of the experts being engaged this presents a serious problem.
Disclosure of experts who will actually testify is, of course, required by 3101(d) and 202.16(g). In determining which experts to call to the stand, however, counsel may well consider and reject any number of potential experts for a variety of reasons, including, inter alia, concerns about cost, an expert’s bias, or a lack of effective communication skills.
Additionally, there are several levels of background assistance that a forensic consultant may render short of providing testimony, such as (1) providing behavioral science research; (2) analyzing the forensic report; (3) assisting with preparation of direct and cross-examination questions; and (4) making recommendations as to other experts who might be helpful to the attorney. Knowledge of the identities of such background consultants can be most revealing of the strategies being considered and ought not to be made known to the opposing side.
It is this writer’s view that the bill would be improved by allowing counsel to share the report and file with experts and consultants without the need to make an application. Security concerns could be met, as they often are now, by requiring experts to sign a document confirming their knowledge of any court-imposed limitations on distribution of the material and their consent to be bound by them. Violators would be subject to contempt penalties.
The proposed legislation makes clear that disclosure of the report and file are subject to the court’s authority to grant protective orders pursuant to CPLR 3103. It further provides that any “failure to comply with a court order conditioning or limiting access to a forensic report shall be contempt of court and may be punishable as such.” These provisions amply endow the court with the ability to impose controls on dissemination of forensic material and to enforce those controls.
The bill makes clear, however, that “in no event shall a party or his or her counsel be prevented from access to or review of a forensic report in advance of and during trial to enable competent representation and trial preparation.” Clearly, the legislation envisions that protective orders will be used sparingly to guard against untoward publication of the forensic material but not to deny the access the legislation is designed to ensure.
A variety of concerns of greater or lesser merit are percolating within the profession and may well emerge as arguments against the Weinstein bill. Principal among them are (1) attorneys for children will have to show the report to their child-clients; (2) some litigants will make malicious use of the report once they have a copy; and (3) the reform is overly focused on the rights of parents and not sufficiently centered on the child’s interest. These will be considered in turn.
Attorneys Will Have to Show the Report to the Child. Some attorneys who represent children in custody proceedings have expressed concern that the Weinstein bill would compel them to provide a copy of the forensic report to their child-client. Nothing in the bill even remotely requires this. It requires that a copy of the report be provided to the “parties.” It does not require that a copy be given to “clients.”
The subject child is a client of the attorney-for-the-child but the child is not a party to the litigation.14 Adding a sentence, superfluous though it would be, to the effect that “Nothing herein shall be deemed to require or permit a copy of the forensic report to be shown or given to the subject child or children” would do no harm and should ease this particular concern.
Someone Will Violate the Protective Order. Because the legislation requires that a copy of the report be given to the parties, some express concern that someone, somewhere, someday will show the report to the children or publish it on the Internet to embarrass the other parent. This is a legitimate concern. It is not, however, a valid reason to reject this important reform legislation.
First, one does not deprive the larger population of contending parents of their constitutional right to due process just because some within that population might abuse that right. Individuals and media outlets abuse the First Amendment on a daily basis yet no one seriously suggests repealing it. Criminals frequently hide their guilt behind the Fifth Amendment. No serious suggestion has been put forth that the Fifth Amendment should be repealed. Thankfully, we do not deprive all citizens of constitutional rights because some of them abuse those rights. Due process should be no exception.
Second, even though someone inevitably will at some point violate the protective order, the court is well-equipped to deal with such violation. All the court need do is respond to such violations strictly, even harshly, and most definitely publicly with a finding of contempt and imposition of jail time. If the first two or three violators appear on the front page of the Post or the Times being perp-walked in handcuffs, future violations, though not entirely eliminated, will be drastically diminished. Custody litigants are under tremendous stress and sometimes behave badly. But relatively few of them are so irrational that they would risk imprisonment just to make mischief with a forensic report.
‘But it’s for the Children.’ Undoubtedly some will voice opposition to this reform with the sweeping argument that the courts should focus entirely upon the interest of the children even at the expense of denying due process to the parents. In any policy debate even tangentially concerning children one often hears the timeworn refrain, “But it’s for the children.” This lament is often the last refuge of those who cannot muster an intellectually sound and honest argument to support their position.
Perhaps hoping to compensate for the lack of substance, those who make this argument tend to put it forth forcefully and emotionally. It is often asserted with such intensity that it can have the effect of shutting down debate rather than advancing discourse. The phrase alone, “it’s for the children,” implicitly suggests that only a child-hating troglodyte would oppose the enunciator’s position. Well, at the risk of seeming troglodytic, this writer submits that the child-centric contention does not warrant opposition to the Weinstein bill. To the contrary, it is precisely “for the children” that this reform should be urgently passed into law.
Let us for the moment set aside constitutional requirements and consider the argument on its own child-centered terms. The “children first” argument presupposes that there is an inherent conflict between (1) preserving the parents’ constitutional right to due process; and (2) protecting the child’s interests that are at the center of the custody proceeding. There’s not.
The fate and future of a child hangs in the balance in every custody proceeding. It is in the child’s supreme interest that the judge makes a decision only on the basis of reliable information. The very reason for transparency in the forensic process is to ensure the reliability of the information put before the court. Only through informed and detailed cross-examination can potential flaws, deficiencies, biases and other indicia of unreliability be revealed to the court. Only through full disclosure are such informed and detailed cross-examinations possible. Thus total transparency is indispensable to protecting the child’s ultimate interest in a fully and reliably informed outcome.
Would anyone suggest otherwise? If there are those who would it is incumbent upon them to address one simple question: How does the child benefit from a judicial decision that is based on information of untested and, thus, unknown reliability?
Even if one cares not one whit for the constitutional rights of parents, the transparency embodied in the Weinstein bill is essential to ensuring that the fate of children will not be decided on the basis of shoddy evidence. Accordingly, every lawyer, judge, forensic evaluator and child advocate should get behind the Weinstein bill—for the children!
Timothy M. Tippins is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology.
1. See for example statements by Justice Jeffrey S, Sunshine, J.S.C. and Justice Ellen Gesmer, J.S.C., reported in Tippins, T.M., “Due Process of Law or Dancing in the Dark?,” NYLJ, Sept. 6, 2012.
2. Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform,” NYLJ, Sept. 5, 2013.
3. Caher, J., “OCA Offers 3 Options for Access to Reports,” NYLJ, Jan. 8, 2013.
4. Miller, S., “Report To The Chief Judge Of The State Of New York,” Matrimonial Commission, February 2006, pp. 51-60.
6. Tippins, T.M., “Custody Evaluations: Full Disclosure Critical,” NYLJ, Jan. 15, 2004; Tippins, T.M., “Forensic Custody Reports: Where’s the Due Process?” NYLJ May 6, 2010; Tippins, T.M., “Due Process of Law or Dancing in the Dark?” NYLJ, Sept. 6, 2012; Tippins, T.M., “Custody Forensics: Reform on the Horizon?” NYLJ, March 7, 2013; Tippins, T.M., “Raising the Bar: The Case for Depositions,” NYLJ, May 2, 2013; Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform,” NYLJ, Sept. 5, 2013.
7. A8342 Summary; Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000).
8. A8342 Summary
9. A8342 Summary
10. Tippins, T.M., “Due Process of Law or Dancing in the Dark?” NYLJ, Sept. 6, 2012; for detailed delineation of the intricacies involved in analyzing a forensic report, see Wittmann, J.P., Evaluating Evaluations: An Attorney’s Handbook for Analyzing Child Custody Reports, MatLaw Systems Corp. (2013).
11. Martindale, D.A., “Integrity and Transparency: A Commentary on Record-keeping in Child Custody Evaluations,” Journal of Child Custody, 1:1, 33-42 (2004), p. 38.
12. A8342 Summary
13. A8342 Summary
14. See McDermott v. Bale, 94 A.D.3d 1542, 943 N.Y.S.2d 708 (4th Dept. 2012): Subject children in custody proceedings, even though represented, do not have “full-party status” and “there is no support for the AFC’s contention that children in a custody proceeding have the same legal status as their parents.”