Forensic Custody Reports

The three proposals are from: 1) The New York State Bar Association Committee on Children and the Law (NYSBA); 2) The Matrimonial Practice Advisory Committee (MPAC); and 3) The Family Court Advisory and Rules Committee (FCARC). The chart on page 4 sets forth the differences among the three proposals, and is referred to in the below discussion.

The FCARC proposal is most closely aligned with the Sonbuchner decision in that it recognizes and reflects the Appellate Division's admonition that “counsel and pro se litigants should be given access to the forensic report under the same conditions.” The proposal requires the most amount of work for the court itself as it dictates that each order appointing a forensic expert be tailored for each matter, and “provide meaningful and thorough access consistent with due process.” However, this proposal gives the court wide discretion to determine under what circumstances the litigants may have and/or review the forensic reports.

The FCARC Nov. 20, 2012, letter to the OCA emphasizes that its intention was to ensure that a self-represented party's due process rights are protected. The letter states in part:

Custody and visitation proceedings, in which appointment of counsel for parents and children is discretionary, often involve litigants representing themselves. Particularly where one party is represented and one is not, as is often the case, it is critical to ensure that the parties are on a level playing field. As a matter of fundamental due process, unrepresented litigants must be able to prepare their cases as well as attorneys. If attorneys receive copies of forensic reports, therefore, so, too, should unrepresented litigants; if the court requires unrepresented litigants to read forensic reports in the courthouse, the same stricture should be applied to attorneys. Clearly a court rule should not require a lesser degree of protection of the parties' due process rights than that which is required by appellate case law; nor should rules be different for custody and visitation proceedings depending upon whether they are in Supreme or Family Court ' and, significantly, many cases are transferred between these courts.

Discussion

Since the dissemination of Mr. McConnell's Memorandum, many bar associations whose members work in matters involving forensic reports have convened to discuss and consider the three proposals. Some bar associations have voted to support in whole one of the three proposals. For example, the Nassau County Bar Association Matrimonial Law Committee endorsed the MPAC proposal in its entirety finding that “the proposal requires adjustment and tweaking going forward” but that it is “presently the best initial solution to continuity on this issue.” Among various concerns raised was whether, because they are not bound by the same ethical constraints as attorneys, the risks of misuse of forensic custody reports are too high if self-represented litigants are provided with the opportunity to possess and use their own copies of the reports outside of the confines of the courtroom.

In discussing these proposals, other issues have been raised in connection with the three proposals. For example, two New York City Bar committees discussed the possibility of adding to the proposal the following language: “Consistent with '7.2 Rules of the Chief Judge, the attorney for the child shall be permitted to show, review and discuss the forensic report with their client in the law office. The child shall not be permitted to have a copy of the forensic report.”

The issue of allowing children of litigants to see the forensic report is not included in any of the three proposals, and is a concerning development because there may be no benefit to allowing children to read the allegations the parties make about one another. Further, if one parent anticipates that a child may ultimately read a forensic report, he or she may be less likely to accurately and honestly report to the forensic evaluator, particularly in cases where domestic violence and/or sexual assault are present.

Another example is the discussion had by the New York City Bar's Council on Children. (“The Council on Children is comprised of representatives of all the City Bar committees dealing with children, education, family, family court, juvenile justice, and the needs of lesbian, gay, bisexual and transgender youth. Also sitting on the Council are representatives of the child welfare, juvenile justice and foster care communities, including attorneys representing parents and children.” (www.nycbar.org/children-council-on.) During that discussion, some members voiced support for the MPAC proposal with modifications such as: allowing disclosure of the forensic expert's files, notes and other documents upon which the forensic report is based; allowing counsel for parties to provide the forensic report to a retained expert engaged to assist counsel with the matter, provided that the expert execute an affidavit swearing not to disclose the forensic report; and allowing self-represented litigants to provide a copy of the forensic report to a mental health professional with the assistance of the court.

A further issue raised at the New York City Bar's Family Court and Family Law Committee is whether Family Courts would have the resources to manage the dictates of those proposals wherein a self-represented litigant can only review the forensic report at the courthouse.

Conclusion

We do not know what OCA will do with the three proposals and, in some instances, the various disparate positions taken by bar associations across the State. It does appear that OCA understands that a change should be made, but just how drastic a change remains to be seen.

It is the belief of the authors of this article that due process of law is being denied to pro se and represented litigants alike when the fundamental right to custody of one's child is at stake by not permitting litigants the opportunity to prepare fully and adequately to confront forensic custody evaluators. These litigant parents should be given free and unfettered access to the report prepared by those evaluators.

It is time for OCA to take a bold position on this issue, a position that was outlined by Justice Saxe in Sonbuchner. The “state” should be required to afford every parent the fullest safeguards to ensure that the parent has every opportunity to prepare to prosecute or defend a claim for custody of a child, which includes, at a minimum, rights equivalent to those of an accused in a criminal case to prepare to refute the evidence that the state intends to use against him or her. For example, how else can a litigant find witnesses who will support his or her claims, or who can refute the statements contained in the forensic reports, unless he or she is able to show that report to those witnesses? The right to confrontation of witnesses is a hollow right if parties cannot use the forensic reports to the fullest extent possible. In addition, equal protection of law forbids treating self-represented litigants any differently than litigants represented by counsel.

'

Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association. Sophie Jacobi-Parisi, an associate of the firm and the primary author of this article, is recognized by Best Lawyers.

'

In last month's issue, we discussed the recent decision in Sonbuchner v. Sonbuchner , 96 AD3d 566 (1st Dept. 2012), in which the Appellate Division, First Department, affirmed the trial court's determination to grant the mother sole custody of the parties' child, despite finding the trial court erred by failing to provide the father, who appeared pro se , with a copy of the forensic evaluator's report. The case has caused consternation in the field of family law, where many are calling for reforms.

Various Ideas

On Jan. 7, 2013, John W. McConnell, Counsel to Chief Administrative Judge A. Gail Prudenti, issued a Memorandum on behalf of the Office of Court Administration (OCA), which was widely disseminated to various bar associations. Mr. McConnell's Memorandum with the exhibits, containing the three proposals can be found in full at http://goo.gl/pstSS. It sought input and comments on three proposed court rules with respect “to forensic evaluation reports in child custody cases by counsel, parties and self-represented litigants.”

The three proposals are from: 1) The New York State Bar Association Committee on Children and the Law (NYSBA); 2) The Matrimonial Practice Advisory Committee (MPAC); and 3) The Family Court Advisory and Rules Committee (FCARC). The chart on page 4 sets forth the differences among the three proposals, and is referred to in the below discussion.

The FCARC proposal is most closely aligned with the Sonbuchner decision in that it recognizes and reflects the Appellate Division's admonition that “counsel and pro se litigants should be given access to the forensic report under the same conditions.” The proposal requires the most amount of work for the court itself as it dictates that each order appointing a forensic expert be tailored for each matter, and “provide meaningful and thorough access consistent with due process.” However, this proposal gives the court wide discretion to determine under what circumstances the litigants may have and/or review the forensic reports.

The FCARC Nov. 20, 2012, letter to the OCA emphasizes that its intention was to ensure that a self-represented party's due process rights are protected. The letter states in part:

Custody and visitation proceedings, in which appointment of counsel for parents and children is discretionary, often involve litigants representing themselves. Particularly where one party is represented and one is not, as is often the case, it is critical to ensure that the parties are on a level playing field. As a matter of fundamental due process, unrepresented litigants must be able to prepare their cases as well as attorneys. If attorneys receive copies of forensic reports, therefore, so, too, should unrepresented litigants; if the court requires unrepresented litigants to read forensic reports in the courthouse, the same stricture should be applied to attorneys. Clearly a court rule should not require a lesser degree of protection of the parties' due process rights than that which is required by appellate case law; nor should rules be different for custody and visitation proceedings depending upon whether they are in Supreme or Family Court ' and, significantly, many cases are transferred between these courts.

Discussion

Since the dissemination of Mr. McConnell's Memorandum, many bar associations whose members work in matters involving forensic reports have convened to discuss and consider the three proposals. Some bar associations have voted to support in whole one of the three proposals. For example, the Nassau County Bar Association Matrimonial Law Committee endorsed the MPAC proposal in its entirety finding that “the proposal requires adjustment and tweaking going forward” but that it is “presently the best initial solution to continuity on this issue.” Among various concerns raised was whether, because they are not bound by the same ethical constraints as attorneys, the risks of misuse of forensic custody reports are too high if self-represented litigants are provided with the opportunity to possess and use their own copies of the reports outside of the confines of the courtroom.

In discussing these proposals, other issues have been raised in connection with the three proposals. For example, two New York City Bar committees discussed the possibility of adding to the proposal the following language: “Consistent with '7.2 Rules of the Chief Judge, the attorney for the child shall be permitted to show, review and discuss the forensic report with their client in the law office. The child shall not be permitted to have a copy of the forensic report.”

The issue of allowing children of litigants to see the forensic report is not included in any of the three proposals, and is a concerning development because there may be no benefit to allowing children to read the allegations the parties make about one another. Further, if one parent anticipates that a child may ultimately read a forensic report, he or she may be less likely to accurately and honestly report to the forensic evaluator, particularly in cases where domestic violence and/or sexual assault are present.

Another example is the discussion had by the New York City Bar's Council on Children. (“The Council on Children is comprised of representatives of all the City Bar committees dealing with children, education, family, family court, juvenile justice, and the needs of lesbian, gay, bisexual and transgender youth. Also sitting on the Council are representatives of the child welfare, juvenile justice and foster care communities, including attorneys representing parents and children.” (www.nycbar.org/children-council-on.) During that discussion, some members voiced support for the MPAC proposal with modifications such as: allowing disclosure of the forensic expert's files, notes and other documents upon which the forensic report is based; allowing counsel for parties to provide the forensic report to a retained expert engaged to assist counsel with the matter, provided that the expert execute an affidavit swearing not to disclose the forensic report; and allowing self-represented litigants to provide a copy of the forensic report to a mental health professional with the assistance of the court.

A further issue raised at the New York City Bar's Family Court and Family Law Committee is whether Family Courts would have the resources to manage the dictates of those proposals wherein a self-represented litigant can only review the forensic report at the courthouse.

Conclusion

We do not know what OCA will do with the three proposals and, in some instances, the various disparate positions taken by bar associations across the State. It does appear that OCA understands that a change should be made, but just how drastic a change remains to be seen.

It is the belief of the authors of this article that due process of law is being denied to pro se and represented litigants alike when the fundamental right to custody of one's child is at stake by not permitting litigants the opportunity to prepare fully and adequately to confront forensic custody evaluators. These litigant parents should be given free and unfettered access to the report prepared by those evaluators.

It is time for OCA to take a bold position on this issue, a position that was outlined by Justice Saxe in Sonbuchner. The “state” should be required to afford every parent the fullest safeguards to ensure that the parent has every opportunity to prepare to prosecute or defend a claim for custody of a child, which includes, at a minimum, rights equivalent to those of an accused in a criminal case to prepare to refute the evidence that the state intends to use against him or her. For example, how else can a litigant find witnesses who will support his or her claims, or who can refute the statements contained in the forensic reports, unless he or she is able to show that report to those witnesses? The right to confrontation of witnesses is a hollow right if parties cannot use the forensic reports to the fullest extent possible. In addition, equal protection of law forbids treating self-represented litigants any differently than litigants represented by counsel.

'

Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association. Sophie Jacobi-Parisi, an associate of the firm and the primary author of this article, is recognized by Best Lawyers.

'