Timothy M. Tippins (NYLJ/Rick Kopstein)
One of the most significant and long-standing problems in custody litigation is lack of transparency in the forensic process.1 The opacity is thickened by the restrictions some courts place on access to the custody evaluator’s report and underlying file. While enlightened courts recognize that due process requires full disclosure of the report and primary data,2 others impose restrictions that are downright Draconian.3 A number of reform proposals have been put forth over the years,4 including one from the Matrimonial Commission, chaired by Hon. Sondra Miller, more than a decade ago.5 Sadly, those proposals were never brought to fruition.
In recent years the problem has gained legislative attention. Helene E. Weinstein, Chair of the Assembly Judiciary Committee, put forth a bill6 that would bring greater transparency to the process. That bill encountered resistance from various interest groups due to concerns that allowing litigants to possess a copy of the evaluation report would risk untoward dissemination that could be detrimental to the subject children. Consequently, it failed to pass in the last legislative session.
In January of this year the Matrimonial Practice Advisory and Rules Committee (MPARC), chaired by Hon. Jeffrey S. Sunshine, issued its annual report.7 In it the Committee recommends, as its first stated priority, a legislative proposal that would provide for disclosure of forensic reports and file content. It builds on the Weinstein bill, modifying it somewhat to include additional safeguards to protect the confidentiality of the forensic material. This article will delineate the principal features of these legislative proposals.8
Data Access and Due Process
The raison d’être of the Weinstein bill and the MPARC proposal is the 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” and, as such, is entitled to “appropriate due process protections and evidentiary safeguards.”9 Both proposals mandate access to forensic reports and underlying data by litigants, attorneys and the forensic experts they engage to assist in the litigation.10 Disclosure of the evaluator’s entire file is required, including but not limited to all underlying notes, test data, raw test materials, and any other materials provided to or relied upon by the evaluator. The Bill Summary that accompanied the original bill reflected the stark reality that full disclosure is essential if the litigants are to receive a fair trial.11 That reality, which is likewise embraced by the MPARC proposal, has also long been understood within the forensic community itself12 and such disclosure has been readily available in virtually all other American jurisdictions for decades. Both the Weinstein bill and the MPARC proposal would relieve New York of its outlier—perhaps outlaw is a more descriptive designation—status and bring it into line with mainstream legal thought.
There is one noteworthy difference between the Weinstein bill and the MPARC proposal concerning dissemination of the forensic material. The Weinstein bill mandates that a copy of the material be provided to the litigants as well as the attorneys and other professionals involved in the case. The disclosure is expressly subject to the court’s authority to grant protective orders pursuant to CPLR 3103 in an appropriate case. Any failure to comply with court-ordered restrictions on dissemination would be punishable as a contempt of court. While it is this writer’s view that such provisions amply endow the court with the ability to impose and enforce controls on dissemination, the MPARC proposal provides additional safeguards to protect confidentiality.
In contrast to the Weinstein bill, the MPARC proposal would allow litigants access to the forensic material but would not allow them to have a copy of same. Litigants who are represented by counsel would be able to review the material at their attorney’s office. Self-represented litigants would have access to the material at the courthouse or another designated location. While these additional safeguards likely reassure those who fret about inappropriate dissemination, they may raise the hackles of those who object to any difference in the treatment of litigants who are represented by counsel and those who are not. The rationale offered by MPARC for this additional safeguard is that litigants, unlike attorneys and mental health professionals, are not subject to professional discipline in the event they violate the restrictions on dissemination.
Much Ado About Little
In this writer’s view, either one of these proposals offers an important step out of the Dark Ages and would move New York toward forensic transparency and the more informed custody adjudications that such transparency would facilitate. True, if litigants are provided copies of the material it is conceivable that someone, somewhere, in some case might disseminate it in an inappropriate manner. There is, however, no evidence to suggest that this would become a widespread problem and the fact that the forensic information usually casts both parents in a less than flattering light should be a built-in deterrent in most cases. Indeed, the experience of other jurisdictions suggests that improper dissemination is not a significant problem. California has provided such disclosure for decades. As Leslie Shear, a certified family law specialist in Los Angeles, states:
In California the litigants have an absolute right to a copy of the forensic report and underlying file material. In 40 years of practice, I have seen only a handful of cases where the report was distributed improperly. It is not a widespread problem.13
It should be axiomatic that the law ought not to deprive the larger population of contending parents of their constitutional right to due process, as the present system does, simply because some within that population might abuse that right. Some individuals and media outlets frequently abuse the First Amendment yet no one seriously suggests repealing it. The Fifth Amendment protects countless criminals as well as the innocent, but there is no movement afoot to repeal it. Simply, we do not deprive our citizenry of constitutional rights just because some may abuse those rights. Due process should be no exception. If some aberrant litigant improperly disseminates the material in violation of a court order, the court is well-equipped to deal with such violation by punishing the misbehavior via a contempt finding. A couple of front-page pictures in the newspapers or a few clips of footage on the evening news of violators being perp-walked in handcuffs should go a long way toward deterring future violations. Custody litigants may not always behave well but relatively few of them are so irrational that they would risk imprisonment for the sake of making mischief with the forensic material.
On the other hand, the MPARC proposal should also be considered acceptable. Unrepresented parties are given the same access to the forensic material as represented litigants. The only difference is the situs of the access. A represented litigant can review the material at his or her attorney’s office; the self-represented party will do it at the courthouse. The differential hardly seems significant enough to hold up such important reform, and if the additional restriction is needed to placate the handwringers, then it should be regarded as an acceptable compromise for the higher good of obtaining the essential transparency that for all too long has been elusive.
The reform offered by the Weinstein bill and the MPARC version thereof is as sorely needed as it is long overdue. It is essential for two reasons: (1) it preserves the parents’ constitutional right to due process; and (2) it protects the child’s interests that are at the center of the custody proceeding. It’s the child’s fate that hangs in the balance and it is in his or her supreme interest that the judge makes a decision on the basis of reliable information. The very reason for transparency is to ensure the reliability of the information put before the court. As one court wisely noted, only through fully informed and piercing cross-examination can potential deficiencies, biases and other indicia of unreliability be revealed to the court and such cross-examinations are not possible without full pretrial disclosure.14 Thus, even if one does not care a whit for the rights of parents, the transparency embodied in the proposed reforms is essential to ensuring that children will not see their futures determined on the basis of shoddy opinions masquerading as expertise. Either of the proposals under consideration advance this cause and should be passed forthwith. The time for dithering and handwringing is over—it is time to act!
1. See Tippins, T.M., “The Weinstein Bill and Forensic Transparency: ‘It’s for the Children!’,” NYLJ, 03-06-14; Tippins, T.M., “Forensic Disclosure: Times Are Changing,” NYLJ, 01-08-15; Tippins, T.M., “Forensic File Disclosure: A Fresh Breath of Common Sense,” NYLJ, 01-07-16; Tippins, T.M., “Custody Evaluation Orders: Data Access,” 07-07-11; Tippins, T.M., “Due Process of Law or Dancing in the Dark?,” NYLJ 09-06-12; “Forensic Custody Reports: Where’s the Due Process? ,” NYLJ, 05-06-10; Tippins, T.M., Custody Evaluations, Part IV: Full Disclosure Critical,” NYLJ, 01-15-04.
2. J.F.D. v. J.D., (Sup. Ct., Nassau Co., Goodstein, J.) (Oct. 17, 2014), NYLJ, Oct. 27, 2014 (2014 WL 5471648); K.C. v. J.C., 50 Misc.3d 892 (Sup. Ct., Westchester Co., Marx, J., 2015); see also statements by Hon. Jeffrey S. Sunshine and Hon. Ellen Gesmer, reported in Tippins, T.M., “Due Process of Law or Dancing in the Dark?,” NYLJ, 09-06-12.
3. Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform,” NYLJ, 09-05-13.
4. Caher, J., “OCA Offers 3 Options for Access to Reports,” NYLJ, 01-08-13.
5. Miller, S., “Report to the Chief Judge of the State of New York,” Matrimonial Commission, February 2006, pp. 51-60.
6. A290 (formerly A8342).
8. The MPARC proposal also contains other innovations regarding when the court may read the forensic reports and the manner of their admission into evidence. Discussion of same is deferred to a future article.
9. A8342 Summary; Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000).
10. A8342 Summary.
12. See comments of David A. Martindale and Jeffrey P. Wittmann, in “The Weinstein Bill and Forensic Transparency: ‘It’s For the Children!’,” NYLJ, 03-06-14.
13. Private communication, 02-25-17.
14. See K.C. v. J.C., 50 Misc.3d 892 (Sup. Ct., Westchester Co., Marx, J., 2015).