The Weinstein Bill: Improved Access to Custody Reports

Child custody reports submitted to family and supreme courts by forensic professionals have the potential to profoundly affect the trajectory of a child's life. There is ample case law and support in the forensic literature for the notion that these documents are valued by courts as tools to promote settlement, to facilitate investigatory fact-gathering and to provide guidance for the judiciary. Attorneys for children and for litigants, as well as parents themselves, have a vested interest in being able to fully explore the forensic report ' and the underlying data for the conclusions the report contains ' in order to make informed decisions about how to proceed with a case and prepare for trial.

NY's Restrictive Approach

Unlike most other states, however, New York has a storied history of a chaotic, non-uniform, and excessively restrictive approach to disclosure ' that is, to whether and how attorneys and litigants should have access to the reports as well as the evaluator's notes, test results, and other underlying data. This state of affairs impairs parents' ability to discern if they should fight a particular report or conclude that settlement is the best course of action. It hinders attorneys for children in their efforts to thoroughly analyze the implications of an assessment for their young clients, and it limits the ability of lawyers to prepare to deal in court with what are often complex, multi-layered documents through cross-examination. It also means that, despite all that has been written about the degree to which forensic assessments can be laced with profound inaccuracies, hearsay and disturbing bias, children may have the direction of their lives determined without their parents or legal professionals involved with their family having a chance to fully vet the reliability of such evaluations.

Some courts in New York offer copies of forensic custody reports and the full forensic file to attorneys and to parents as they negotiate and prepare for trial. Some allow attorneys to have copies, while ordering that no copies of a report be made for anyone else, including parents and consultants working to assist the legal team. Others require that attorneys only read the reports in court and then walk down the hall to verbally summarize the material for their clients (meaning that the parents never get to see what was written about them).

This author has experienced barriers ' either as a potential expert witness about the quality of a custody report or as a trial consultant assisting attorneys for parents or children preparing for trial. These include being prevented from having any access to the report unless it occurs in a lawyer's office; denial of permission to see the underlying data for a report until the morning of trial; and being forced to speed-read hundreds of pages of material together with an attorney in a crowded, noisy courtroom with a two-hour time limit in preparation for a cross-examination related to a 90-page forensic document.

Such restrictions impair the ability of attorneys to competently represent their clients. One can only imagine what this state of chaos and inconsistency means for less moneyed, or self-represented, parents as they prepare to defend their perspective about what is in the best interests of their children.

Solution Proposed by the Weinstein Bill

Assemblywoman Helene Weinstein (District 41), the chair of the state Assembly Standing Committee on the Judiciary, has proposed Bill A08342 to create a more fair and uniform approach to this problem via amendments to New York's Domestic Relations Law and Family Court Act. Among other provisions, it would:

• Mandate uniform access to forensic custody reports by litigants, their attorneys, and attorneys for the child;
• Mandate access to the evaluator's entire file;
• Create a rebuttable presumption that the forensic file is discoverable;
• Allow parties to share the report with professionals hired to assist them or to rebut a report via testimony;
• Affirm judges' ability to issue protective orders that condition or limit access to the forensic report and underlying file, and the authority to hold violators in contempt; and
• Mandate that questions about the admissibility of the custody report or the evaluator's file be subject to the rules of evidence and the right of cross-examination.

The bill summarizes its core rationale by noting that one of the fundamental liberty interests recognized in law is the right to the care, custody and management of one's child. It states: “The limitations on access to the reports raise serious due process concerns including the inability of parents to adequately and effectively challenge the quality and trustworthiness of forensic reports that play a critical and often decisive role in shaping a court's decision about parental access to their children. In addition, the forensic reports are frequently not subjected to the rigor of evidentiary laws and procedures.”

Concerns About the Bill

Reaction to this proposed legislation has been mixed, ranging from general support for its core provisions (T. Tippins, New York Law Journal, 3/6/14) to wholesale rejection, or support with suggestions for amendments (Memorandum in Support, with Amendments, by New York State Bar Association Committee on Children and the Law, 6/4/14). Among the concerns raised about the bill are that parents will expose children to the content of forensic reports, thus placing them at emotional risk, and that parents will distribute the contents of the report to members of the public in a manner that can damage or destroy the other party's reputation. These concerns have led to suggestions about how to control access to forensic custody reports by such measures as restricting litigants to access that is supervised by their attorney or, in the case of pro se litigants, to access in court under strict conditions that prevent duplication or photos from being made.

Competing Values

Litigants in civil and criminal actions who are subjects of medical or psychological evaluations have few barriers to easy access to those evaluations because the information may be used for or against their positions in court and they therefore have the right to prepare their case and to due process. However, many courts have been hesitant to grant similar access to custody litigants for well-intentioned reasons: For example, to protect children from exposure to sensitive material or to minimize family discord by reducing the weaponry available to angry parents who are under extraordinary stress.

Forensic custody reports are a unique species of court-related documents. Not only do they contain an individual litigant's comments, opinions, and personal data, but they also have the same information regarding the opposing litigant. In addition, they often contain sensitive material conveyed by the children to an evaluator. The toxic potential of these factors, especially in an age of easy electronic distribution of material via social media and other methods, has to be weighed against the serious disadvantages related to excessively constricted access to forensic reports. These include the truncation of litigants' ability to assist in the analysis and preparation of their case, roadblocks to effective legal representation of a parent or child due to burdensome and expensive hurdles to the analysis of a forensic report, and infringement upon the basic and constitutionally recognized liberty to parent one's child and fully prepare to defend that right.

Conclusions

Forensic mental health professionals who are in touch with the literature of their discipline accept as basic the idea that the data they gather on a family and any notes, tapes, video and other instruments for memorializing that data are discoverable and subject to close scrutiny. The Specialty Guidelines for Forensic Psychology (American Psychological Association (APA), 2013) and the Model Standards of Practice for Child Custody Evaluation (Association of Family and Conciliation Courts (AFCC), 2007) specifically state that we are to create and manage our files with the assumption that they will be discoverable and subject to close inspection. New York courts continue to struggle with how to manage discovery when children are involved and have impaired due process with their uneven and constricting approaches to this dilemma.

It is beyond the scope of this article to fully analyze the various solutions that have been offered elsewhere as an alternative to the approach taken by proposed Law A08342. However, while there is little doubt that some parents with access to forensic reports will make bad choices, it should be noted that there is no body of literature establishing that in other states where access to forensic reports is unimpeded, parents act irresponsibly or recklessly in meaningful numbers. To allow the existence of barriers to accessing evidence that may truncate parents' relationship with their children (or children's relationship with parents) essentially sets due process rights aside based on the predicted bad behavior of the few. In other areas of litigation, such risks are dealt with in the old-fashioned way ' through fines, imprisonment and other penalties.

While certain changes to the Weinstein Bill might reduce the hypothesized risk to children ( e.g. , by structuring the conditions under which parents can have access to the reports about their families and to the underlying forensic file), such amendments must be weighed against the impediments to efficient case preparation they create.

The proposed legislation goes a long way toward moving New York in the direction of what other states have taken as self-evident: Where the sacred right of parents to care for and raise their children hangs in the balance, unfettered access to forensic information that may be used to truncate the parent-child relationship is the best path to ensuring the best interests of those the court is charged with serving.

Jeffrey P. Wittmann, Ph.D. , a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). Reach him at [email protected].

Child custody reports submitted to family and supreme courts by forensic professionals have the potential to profoundly affect the trajectory of a child's life. There is ample case law and support in the forensic literature for the notion that these documents are valued by courts as tools to promote settlement, to facilitate investigatory fact-gathering and to provide guidance for the judiciary. Attorneys for children and for litigants, as well as parents themselves, have a vested interest in being able to fully explore the forensic report ' and the underlying data for the conclusions the report contains ' in order to make informed decisions about how to proceed with a case and prepare for trial.

NY's Restrictive Approach

Unlike most other states, however, New York has a storied history of a chaotic, non-uniform, and excessively restrictive approach to disclosure ' that is, to whether and how attorneys and litigants should have access to the reports as well as the evaluator's notes, test results, and other underlying data. This state of affairs impairs parents' ability to discern if they should fight a particular report or conclude that settlement is the best course of action. It hinders attorneys for children in their efforts to thoroughly analyze the implications of an assessment for their young clients, and it limits the ability of lawyers to prepare to deal in court with what are often complex, multi-layered documents through cross-examination. It also means that, despite all that has been written about the degree to which forensic assessments can be laced with profound inaccuracies, hearsay and disturbing bias, children may have the direction of their lives determined without their parents or legal professionals involved with their family having a chance to fully vet the reliability of such evaluations.

Some courts in New York offer copies of forensic custody reports and the full forensic file to attorneys and to parents as they negotiate and prepare for trial. Some allow attorneys to have copies, while ordering that no copies of a report be made for anyone else, including parents and consultants working to assist the legal team. Others require that attorneys only read the reports in court and then walk down the hall to verbally summarize the material for their clients (meaning that the parents never get to see what was written about them).

This author has experienced barriers ' either as a potential expert witness about the quality of a custody report or as a trial consultant assisting attorneys for parents or children preparing for trial. These include being prevented from having any access to the report unless it occurs in a lawyer's office; denial of permission to see the underlying data for a report until the morning of trial; and being forced to speed-read hundreds of pages of material together with an attorney in a crowded, noisy courtroom with a two-hour time limit in preparation for a cross-examination related to a 90-page forensic document.

Such restrictions impair the ability of attorneys to competently represent their clients. One can only imagine what this state of chaos and inconsistency means for less moneyed, or self-represented, parents as they prepare to defend their perspective about what is in the best interests of their children.

Solution Proposed by the Weinstein Bill

Assemblywoman Helene Weinstein (District 41), the chair of the state Assembly Standing Committee on the Judiciary, has proposed Bill A08342 to create a more fair and uniform approach to this problem via amendments to New York's Domestic Relations Law and Family Court Act. Among other provisions, it would:

• Mandate uniform access to forensic custody reports by litigants, their attorneys, and attorneys for the child;
• Mandate access to the evaluator's entire file;
• Create a rebuttable presumption that the forensic file is discoverable;
• Allow parties to share the report with professionals hired to assist them or to rebut a report via testimony;
• Affirm judges' ability to issue protective orders that condition or limit access to the forensic report and underlying file, and the authority to hold violators in contempt; and
• Mandate that questions about the admissibility of the custody report or the evaluator's file be subject to the rules of evidence and the right of cross-examination.

The bill summarizes its core rationale by noting that one of the fundamental liberty interests recognized in law is the right to the care, custody and management of one's child. It states: “The limitations on access to the reports raise serious due process concerns including the inability of parents to adequately and effectively challenge the quality and trustworthiness of forensic reports that play a critical and often decisive role in shaping a court's decision about parental access to their children. In addition, the forensic reports are frequently not subjected to the rigor of evidentiary laws and procedures.”

Concerns About the Bill

Reaction to this proposed legislation has been mixed, ranging from general support for its core provisions (T. Tippins, New York Law Journal, 3/6/14) to wholesale rejection, or support with suggestions for amendments (Memorandum in Support, with Amendments, by New York State Bar Association Committee on Children and the Law, 6/4/14). Among the concerns raised about the bill are that parents will expose children to the content of forensic reports, thus placing them at emotional risk, and that parents will distribute the contents of the report to members of the public in a manner that can damage or destroy the other party's reputation. These concerns have led to suggestions about how to control access to forensic custody reports by such measures as restricting litigants to access that is supervised by their attorney or, in the case of pro se litigants, to access in court under strict conditions that prevent duplication or photos from being made.

Competing Values

Litigants in civil and criminal actions who are subjects of medical or psychological evaluations have few barriers to easy access to those evaluations because the information may be used for or against their positions in court and they therefore have the right to prepare their case and to due process. However, many courts have been hesitant to grant similar access to custody litigants for well-intentioned reasons: For example, to protect children from exposure to sensitive material or to minimize family discord by reducing the weaponry available to angry parents who are under extraordinary stress.

Forensic custody reports are a unique species of court-related documents. Not only do they contain an individual litigant's comments, opinions, and personal data, but they also have the same information regarding the opposing litigant. In addition, they often contain sensitive material conveyed by the children to an evaluator. The toxic potential of these factors, especially in an age of easy electronic distribution of material via social media and other methods, has to be weighed against the serious disadvantages related to excessively constricted access to forensic reports. These include the truncation of litigants' ability to assist in the analysis and preparation of their case, roadblocks to effective legal representation of a parent or child due to burdensome and expensive hurdles to the analysis of a forensic report, and infringement upon the basic and constitutionally recognized liberty to parent one's child and fully prepare to defend that right.

Conclusions

Forensic mental health professionals who are in touch with the literature of their discipline accept as basic the idea that the data they gather on a family and any notes, tapes, video and other instruments for memorializing that data are discoverable and subject to close scrutiny. The Specialty Guidelines for Forensic Psychology (American Psychological Association (APA), 2013) and the Model Standards of Practice for Child Custody Evaluation (Association of Family and Conciliation Courts (AFCC), 2007) specifically state that we are to create and manage our files with the assumption that they will be discoverable and subject to close inspection. New York courts continue to struggle with how to manage discovery when children are involved and have impaired due process with their uneven and constricting approaches to this dilemma.

It is beyond the scope of this article to fully analyze the various solutions that have been offered elsewhere as an alternative to the approach taken by proposed Law A08342. However, while there is little doubt that some parents with access to forensic reports will make bad choices, it should be noted that there is no body of literature establishing that in other states where access to forensic reports is unimpeded, parents act irresponsibly or recklessly in meaningful numbers. To allow the existence of barriers to accessing evidence that may truncate parents' relationship with their children (or children's relationship with parents) essentially sets due process rights aside based on the predicted bad behavior of the few. In other areas of litigation, such risks are dealt with in the old-fashioned way ' through fines, imprisonment and other penalties.

While certain changes to the Weinstein Bill might reduce the hypothesized risk to children ( e.g. , by structuring the conditions under which parents can have access to the reports about their families and to the underlying forensic file), such amendments must be weighed against the impediments to efficient case preparation they create.

The proposed legislation goes a long way toward moving New York in the direction of what other states have taken as self-evident: Where the sacred right of parents to care for and raise their children hangs in the balance, unfettered access to forensic information that may be used to truncate the parent-child relationship is the best path to ensuring the best interests of those the court is charged with serving.

Jeffrey P. Wittmann, Ph.D. , a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts peer work-product reviews and is the author of Custody Chaos, Personal Peace (Penguin, 2001). Reach him at [email protected].