February 26, 2013
Comments from the New York County Lawyers’ Association Matrimonial Law Section Regarding Access to Forensic Evaluation Reports in Child Custody Matters
The Office of Court Administration has invited comment on three competing proposals regarding the scope of access to forensic evaluation reports in child custody cases. The three proposals were drafted by the New York State Bar Association Committee on Children and the Law, the Matrimonial Practice Advisory Committee, and the Family Court Advisory and Rules Committee, respectively. Each of the foregoing committees submitted cover letters with their proposals expressing interest in the adoption of a unified procedure regarding access to forensic reports. Each proposal seeks to promote due process by insuring access to the reports to litigants (both represented and pro se) as well as to attorneys, while preventing abuse of the reports by limiting dissemination.
The New York County Lawyers’ Association Matrimonial Law Section (hereinafter, the “Section”) has considered the three proposals and the interests they seek to address. Detailed commentary follows below.
All three proposals impressed the Section with their practical insight, their promotion of fair access, their concern for potential abuse and their thoughtfulness in seeking a balanced approach to the interests at stake. The Committee on Children and the Law’s proposal is admirably straightforward and simple in seeking a balance. It guarantees review of the forensic report to represented and pro se litigants alike, but grants the court discretion to limit who actually receives a copy. The proposal of the Family Court Advisory and Rules Committee is commendable for suggesting that, upon the appointment of a neutral forensic, the court issue an order setting forth the scope of access to the forensic report.
However, since once forensic information is disseminated, the damage cannot be undone, the Section believes that a strong front-loaded deterrent to abuse is necessary, one that is not found in the Committee on Children and the Law’s proposal. We also believe that the controlling guideline set forth by the Family Court Advisory and Rules Committee for the issuance of access orders (“meaningful and thorough access consistent with due process”) is so broad that judges will, by necessity, have to make sui generis rulings based on their own sensibilities and the countless permutations of facts before them. We are concerned that such broad guidelines applied to constantly varying fact patterns cannot yield the uniformity being sought.
The Section found the proposal of the Matrimonial Practice Advisory Committee (hereinafter, “MPAC”) to offer the best combination of functional simplicity, access to forensic information in satisfaction of due process, and deterrence of abuse. The Section supports and endorses the MPAC’s proposal with the following suggested additions and changes:
- Copies and access to the neutral forensic’s underlying notes and raw data shall be made available to counsel and litigants pursuant to the same terms and conditions as the forensic report, upon request by an unrepresented party or counsel.
- An unrepresented party’s access to forensic materials in the courthouse shall include access to the forensic materials during trial.
- Without need for application to the court, counsel may give a copy of the forensic report to a mental health professional who is engaged to assist counsel after obtaining an affidavit (MPAC’s Exhibit C, amended to also apply to forensic notes) from the mental health professional. Such affidavit shall be maintained by counsel as a permanent part of his/her legal file.
- A self-represented party may arrange for the court to provide a mental health professional who is engaged to assist the self-represented party with one copy of the report and forensic notes by providing the court with the affidavit (MPAC’s Exhibit C, amended to also apply to forensic notes) from the mental health professional.
- Confidential information shall be redacted from any reports or forensic notes prior to being made available by the court. “Confidential information” shall have the same definition under these rules as in the Family Court Act.
- Violations of the affirmations or affidavits regarding disclosure shall be punishable as contempt of court.
The Section further supports the MPAC proposal in that affirmations and affidavits will provide that parties shall not directly quote any language from the report in papers or other documents submitted to the court, and counsel shall return copies of the report to the court if counsel ceases to represent the client.
The Section proposes two amendments (represented by the words in italics) to language in the MPAC proposals. In the last sentence of paragraph 4: “. . . secure location, as determined by the court, after executing an affidavit….” In paragraph 6: “. . . the court shall make appropriate accommodations.”
Finally, it has come to the Section’s attention that other bar associations will be commenting upon the children’s rights to view the forensic report, even though this issue was not addressed in any proposal for which OCA is seeking comment. The Section does not believe this issue should be addressed at this time as children are not parties to these actions. Nevertheless, the Section believes that allowing any child to review or read the forensic report would be detrimental to the child. Accordingly, if any rule is to be implemented regarding the child’s access to the forensic materials, it should preclude the child from reading such materials.