On Jan. 7 of this year the Chief Administrative Judge announced that the judicial administration is poised to address a long-standing problem in the child custody arena, namely, access to the forensic evaluator's report.1 Three specific proposals are presently under consideration. The Office of Court Administration's Family Court Advisory and Rules Committee (FARC), its Matrimonial Practice Advisory Committee (MPAC), and the New York State Bar Association's Committee on Children and the Law have all submitted proposals. Though not specifically mentioned in the recent announcement, the New York State Matrimonial Commission, chaired by then Justice Sondra M. Miller, in 2006, offered significant solutions to this and other problems in the custody forensic field. The current judicial interest in reform presents an important opportunity for long-needed critical changes in the manner in which the courts deal with the forensic process. This article will examine the potential impact of a number of the proposals put forth.
The Problem: Data Access
The problem of data access has largely resulted from a laudable though misguided effort to protect against a vengeful litigant obtaining a copy of the evaluator's report and either showing it to the children or otherwise publishing its content to a wider audience. This has led some judges to impose stringent, even Draconian, restrictions on access to the forensic report.
Restricted data access, not only with respect to the final report but also of all underlying data contained in the evaluator's file, has been previously addressed in detail in this column on a number of occasions.2 In a nutshell the problem is that without total and unfettered access to the forensic report and all underlying data it is simply not possible to cross-examine the evaluator effectively. When a court unduly restricts data access the opportunity to shed important light on the quality of the evidence getting before the judge is lost. In effect, by indulging the concern for privacy, the court deprives the litigants of due process and evidentiary safeguards and also deprives itself of important information about the trustworthiness of the evidence that is being put before it.
The MPAC Proposals
While a detailed critique of all of the submitted proposals lies beyond the scope and space of this article, the position staked out by the MPAC comes closest to meeting what should be the overarching twin goals of any reform effort: (1) affording due process to the parties; and (2) ensuring that the custody court will become informed of all the facts that are relevant to the critically important decision that it has to make.
The MPAC proposal would usher in the following reforms on a uniform basis:
1. Upon receipt of the forensic report, the court shall advise counsel for the parties and counsel for the child(ren), that it has received the report, and shall provide to each counsel an affirmation in the form annexed hereto as Exhibit A.
2. The court shall provide one copy of the forensic report to each counsel from whom it has received an executed affirmation.
3. Each attorney shall retain her copy of the report in confidence and may make an additional copy for her own use in preparing for litigation, which copy shall also be kept in confidence when not being used.
4. Each party shall be permitted to read the report and make notes concerning it but shall not be permitted to have a copy. A represented party may read it in his attorney's office. An unrepresented party may read it in the courthouse or other secure location after executing an affidavit in the form attached hereto as Exhibit B.
5. Upon application by counsel or a party for permission to give a copy of the report to a mental health professional to assist counsel or the party, the court shall provide to the mental health professional an affidavit in the form annexed hereto as Exhibit C. The court shall provide one copy of the forensic report to a mental health professional from whom it has received an executed affidavit.
6. In the event that an unrepresented litigant is unable to read the forensic report in the courthouse because of language skills or disability, the court may make appropriate arrangements.
In addition, the MPAC has also recommended that 22 NYCRR §202.16(g), which requires pretrial disclosure of expert reports, be amended to clarify and increase the specific information that must be disclosed to include, inter alia, the expert's published writings, other cases in which the expert has testified, and the compensation to be received in the current case.