Challenging the Forensic Psychiatrist's Report

For example, courts have rejected neutral expert testimony they have found unpersuasive in favor of other experts who testified in the case. In State ex rel. H.K. v. M.S. 187A.D.2d50, 592 N.Y.S.2d708 (1st Dept 1993) the First Department rejected various expert testimony it determined to be not credible. There, the parties had agreed on joint custody, the mother having physical custody and the father exercising daily visitation. Due to circumstances not relevant here, the parties ended up in a custody dispute that resulted in a long trial. In affirming an award of sole custody to the mother, the appellate court noted that the trial court was free to reject the recommendation of the court-appointed neutral expert, as well as experts who testified on the father's behalf, and credit the mother's experts. The court, in determining that the mother was a more fit parent, noted that the expert testimony rejected by the court was “seriously undermined on cross examination.” See also, Merl v. Merl, 128 A.D.2d 685, 513 N.Y.S.2d 184 (2d Dept. 1987) (court rejected court-appointed expert's recommendation with regard to custody in favor of the recommendation of the psychiatrist for one of the parties who had treated both parties and their child, to various degrees, for 8 years).

In other cases, courts have rejected expert testimony where the court believed it was based on incorrect or unreliable information. In Darema-Rogers v. Rogers, 199 A.D.2d 456, 606 N.Y.S.2d 15 (2d Dept. 1993), the court rejected the testimony of two psychological experts in declining to transfer custody from the mother to the father. The court noted that the expert recommendation was based largely on the expressed preference of one of the children, a 12-year-old, who should not have been determining custody for herself and her younger sister. The court determined that both were fit and loving parents, but it was “reluctant to transfer custody of young children.” Likewise, in Frank R. v. Deborah Ann R., 204 A.D.2d 615, 612 N.Y.S.2d 78 (2d Dept. 1994), the court granted custody to the father against the recommendation of the court-appointed psychologist because the psychologist's report was based on faulty information. In that case, the mother had misrepresented to the psychologist that she would remain in her current residence, when there was actually only a slim chance of that, and the psychologist was not made aware of other important factors bearing on the mother's fitness. Similarly, the court in Edgerly v. Moore, 232 A.D.2d 214, 647 N.Y.S.2d 773 (1st Dept. 1996), rejected an independent expert's valuation because it was based on a concern that was “factually faulty.” In Matter of T.H., 11/21/97 N.Y.L.J. 34, (Col. 5) (Fam. Ct. Westchester Cty.), the court rejected the court-appointed psychiatrist's recommendation that custody be awarded to the father where the psychiatrist based the recommendation in part on documentation that had not been admitted into evidence.