Opening the Door

This Court ' shall, from this day forward, allow the parties themselves to read the [forensic evaluation] report, as well as the raw material. With this one sentence (qualified by conditions designed to prevent substantial prejudice to either party and to preserve the confidentiality of the most sensitive of personal information that provided to a forensic evaluator in a custody matter) the court in J.F.D. v. J.D., 2014 NY Slip Op. 51547 (Sup. Ct., Nassau Cty, 10/17/14), took a singular step forward, effectively announcing a new policy in its IAS Part with respect to custody matters ' this, despite the fact that the application prompting this new policy requested relief more narrow than that which was ultimately granted. (Acting Nassau County Supreme Court Justice Jeffrey A. Goodstein recited in his decision that the relief sought by the husband was the release of the raw data and notes of the forensic evaluator so that his retained expert could review them for the purpose of preparing for cross-examination. The husband did not seek release of this underlying information to the parties.)

In this case, involving a violation of the ban precluding an attorney from providing a copy of the forensic report to a client, Justice Goodstein opined that “[t]he circumstances surrounding this Forensic Report, as well as the instant motion for the release of the Forensic Evaluator's entire file[,] has required this Court to conduct a close examination of the issue of discovery during custody litigation regarding forensic reports and the raw data, notes, and overall entire file maintained by forensic evaluators which are compiled during the course of the evaluation process.”

The Extensive Analysis in J.F.D. v. J.D.

Justice Goodstein said that while “[d]isclosure of the notes made and the data prepared by experts is routinely permitted in areas of the law,” such disclosure has not been “routine” in custody cases in which, as the wife argued in opposition to the husband's application, the “potential for abuse ' is great” (citing Worysz v. Ratel III, 101 A.D.3d 893 (2nd Dep't). Citing the Westchester County trial court decision in Ochs v. Ochs, 193 Misc.2d 502 (Sup. Ct. Westchester Cty. 2002)), which set forth a “special circumstances” test for obtaining pretrial discovery of a forensic evaluator's notes, raw data and test results (such “special circumstances” including, for example, bias on the part of the evaluator or a deficiency in his or her report), Justice Goodstein noted that this restrictive standard “has, for the most part, been followed by the subsequent cases.”

A similar observation was made by the court in the New York County matter of CP v. AP, 32 Misc.3d 1210(A) (Sup. Ct. N.Y. Cty. 2011), which noted that “[i]n the First and Second Judicial Departments it is well established that discovery on custody matters, generally, is limited,” and further, that “[w]ith respect specifically to the notes, raw data and test results of the court-appointed forensic evaluator, the courts have consistently held that 'special circumstances' exist that support a limitation on discovery of these documents.”

Indeed, the holding and rationale of Ochs was cited, and followed, less than a month prior to Justice Goodstein's decision, in the matter of R.T. v. L.T., N.Y.L.J. 12026720926267, at *1 (Sup. Ct. Westchester Cty., decided 9/26/14). In R.T., the father sought an order directing release of the full file of the forensic evaluator, including, but not limited to, notes, records, and raw psychological data. Citing the “special circumstances” rule of Ochs , the court in R.T. found that “the father has not identified any particular bias on the part of the evaluator. He deems the report deficient based solely on her decision not to utilize certain psychological tests he deems important.” As a result, the R.T. court held that no special circumstances existed to warrant disclosure, and that such disclosure would only (as the Ochs court warned) transform the litigation into a “lengthy and expensive critique of the psychologist's methodology, rather than a test of the conclusions themselves” (citing Ochs, supra, at 509).

Proposed Bill A8342-2013

In addition to cases addressing disclosure regarding forensic evaluations, Justice Goodstein noted that his research included a review of Bill A8342-2013, proposed by Chair of the Assembly Standing Committee on the Judiciary Helene E. Weinstein, which would have amended Domestic Relations Law ” 70 and 240 as they address court-ordered forensic evaluations and reports in child custody and visitation matters (the Bill). Pursuant to the proposed amendments, parties and their counsel would have the right to receive a copy of such evaluations or reports (subject to appropriate protective orders, if warranted); and, further, there would be a rebuttable presumption that a court-ordered evaluator's file ' including, but not limited to, notes, test data, raw test materials, underlying materials provided to or relied upon by the court-ordered evaluator and any records, photographs or other evidence ' be discoverable (similarly subject to appropriate protective orders, if warranted). Failure to comply with court orders conditioning or limiting access to a forensic report would be punishable as contempt of court.

Justice Goodstein included a lengthy recitation of the justification provided for the Bill in his decision. That justification provided, for example, that “without the ability to thoroughly examine the report and challenge its contents, a litigant's right to a fair trial is severely hampered”; and that, “[i]n light of the interest at stake” ' what the court noted “is one of the oldest and most fundamental liberty interests recognized by law,” that of a parent in the “care, custody and management of his or her child/ren” ' “it is important to afford parents and litigants in child custody and visitation cases due process protections and evidentiary safeguards ' This proposal balances important due process rights against any countervailing concerns relating to a harmful impact on the child/ren subject to the litigation that may result from unfettered access to forensic reports and underlying data in child custody and visitation cases.”

Justice Goodstein concluded that he “fully agree[d]” with the Bill, opining that requiring “ special circumstances” in order to be entitled to discovery was, effectively, putting the cart before the horse. Succinctly stated, “[t]his Court fails to understand how a party can show bias on the part of the evaluator or a deficiency in the report without the careful review of the raw data and notes of the forensic evaluator.” As a result, Justice Goodstein articulated his belief that, as proposed in the Bill, there should be a rebuttable presumption in favor of pre-trial discovery of both the forensic report and the evaluator's entire file, in every case, unless a specific motion is made to restrain the release of those materials based upon a showing of substantial prejudice:

This Court believes that the weight to be given to a forensic report must be measured, not only by the conclusions rendered, but by the process taken to reach those conclusions. Custody determinations are the most important and most difficult determinations which the Court is required to make, and restricting a proper cross examination by not allowing the raw data to be distributed could be detrimental to the best interests of the child and this Court's ultimate determination. ' This Court is keenly aware of the alleged effect this may have on forensic evaluators' concerns about lengthy cross examination into their thought process and how they reached their conclusion, but the utmost important task is for the Court to be provided with the most reliable data to make such decisions when it comes to custody. The same discovery issues and cross examinations occur for a forensic accountant, and the value of a business or a party's enhanced earning capacity, means little when compared to a judge having to decide what he/she believes is in the best interests of a child, when that child's parents cannot come to that determination amongst themselves.

Having carefully undertaken this thorough analysis ' which included an analogy comparing a forensic evaluator's file with the ” Rosario ” rule requiring disclosure of pre-trial statements of witnesses in criminal cases, as well as the underlying raw data which led to such police reports (such as the police officer's preliminary notes) ' Justice Goodstein reached a conclusion that extended beyond the specific case at issue to all future custody matters appearing in his courtroom. He wrote:

[I]t is this Court's belief that the forensic evaluator's raw data, recordings, notes, tests, test results, and all material relied upon and created during the evaluation process are discoverable by both parties and by the Attorney for the Children. Likewise, this Court, while coming to this decision, shall, from this day forward, allow the parties themselves to read the report, as well as the raw material. However, the parties shall not be provided a copy of the report or the raw materials, but will be allowed to review the report and raw materials in their attorney's office with an attorney present. They will be permitted to take notes, but will be precluded from taking photos and/or copies of the report and/or the raw data. This Court's orders appointing forensic evaluators for custody purposes will address the evaluator's responsibility to maintain and provide copies of all the raw data materials to the Court, which in turn, will provide same to counsel as set forth above with the signing of a Stipulation for Release and Use of Forensic Reports and Order as outlined above. Only in doing this can a party truly assist their counsel in preparing for an effective cross-examination.

The Effect of J.F.D. v. J.D.

Having announced his intention to (in effect) incorporate into his courtroom policy going forward the major points of the defunct (for the moment) Bill A8342-2013 regarding disclosure of forensic reports and the relating underlying data, the operative question appears to be this: Will the holding of J.F.D. v. J.D. be followed by other courts? In his thoughtful and sweeping decision, Justice Goodstein has certainly taken on the role of a trailblazer, articulating policy for his own IAS Part going forward, and creating a precedent for other judges to do the same. But despite creating precedent in the general use of that term, the decision in J.F.D. did not create precedent in a legal sense, as it is not a binding decision on other trial-level courts.

However, as demonstrated by the decision in Ochs 12 years earlier, the decisions of trial level courts can have a strong impact on, and greatly influence the rationale and outcome of, other courts addressing the same issues. Where the decision in J.F.D. leads, others may follow. In addition, the J.F.D. decision comes at a time of increasing attention to, and discussion of, the extent of the access that parties, their counsel and their experts should receive to forensic evaluation reports themselves, and to the notes, test results and other underlying data that form the basis for the conclusions in those reports, as exemplified by the Bill. See, e.g., “Legislative Effort Over Disclosing Custody Forensic Reports,” NYLJ, Jan. 31, 2014, and “When Is Disclosure of Forensic Evaluator's 'Raw' File Appropriate?” NYLJ, Oct. 31, 2013. The decision in J.F.D. could certainly prompt other courts to implement the same policies in their own courtrooms in custody/access matters, in an effort to provide litigants with a more extensive set of tools by which to ensure that a court faced with such a critical decision as the custody of children will have the best and fullest view of the forensic evaluation presented to it.

Concerns

That being said, there is (and should be) some concern prompted by the trail being blazed by a single trial court in a single county, rather than through state-wide legislation like the proposed Bill. Without a single state-wide policy or mandate, the present inconsistency in how forensic evaluation reports (and the underlying data) are handled will remain, at least in some venues, and frustration with the process will continue to grow. As the court noted in Ochs , “The value of the essential role played by the court-appointed neutral forensic psychologist in custody litigation is now so well recognized that such an appointment is essentially required in any custody litigation where there are serious questions of parental fitness” (193 Misc.2d at 505), and “the neutrality of the expert and the high regard that the court must have in order to appoint a particular forensic psychologist, makes his or her report a highly significant factor for the court to consider in the context of all of the evidence presented in the case, including any expert testimony presented by the parties” (Id.). Leaving to individual courts the decision of what level of access parties, their counsel, and their experts should have to the information that would permit the best examination of that expert testimony will simply perpetuate a system in which a party's ability to fully inform the individual deciding the future of his or her child will depend upon where that party lives, and the judge to whom his or her case is assigned. In effect, it leaves a parent's trial strategy subject, in part, to geography and the figurative spin of a wheel.

As asserted in the justifications presented for the Bill (and quoted in J.F.D., supra , a “parent's interest in the care, custody and management of his or her children is one of the oldest and most fundamental liberty interests recognized by law,” and, indeed, it has been established as such by the Supreme Court of the United States. As Justice Goodstein recognizes in J.F.D., surely a determination that impacts such a fundamental right should be based upon the solid foundation of a well-considered and well-tested forensic evaluation report (should such a report be deemed necessary in the first instance). Justice Goodstein's decision in J.F.D. opens the door to the possibility that all litigants may obtain access to the tools enabling that testing to take place in as fully informed a manner as possible. In this way, the “best interests of the children” can truly be protected.

Leigh Baseheart Kahn is a Fellow of the American Academy of Matrimonial Lawyers and a partner of Mayerson Abramowitz & Kahn, LLP, which limits its practice to Matrimonial, Divorce and Family Law. She is recognized by both Best Lawyers in America and Super Lawyers.

This Court ' shall, from this day forward, allow the parties themselves to read the [forensic evaluation] report, as well as the raw material. With this one sentence (qualified by conditions designed to prevent substantial prejudice to either party and to preserve the confidentiality of the most sensitive of personal information that provided to a forensic evaluator in a custody matter) the court in J.F.D. v. J.D. , 2014 NY Slip Op. 51547 (Sup. Ct., Nassau Cty, 10/17/14), took a singular step forward, effectively announcing a new policy in its IAS Part with respect to custody matters ' this, despite the fact that the application prompting this new policy requested relief more narrow than that which was ultimately granted. (Acting Nassau County Supreme Court Justice Jeffrey A. Goodstein recited in his decision that the relief sought by the husband was the release of the raw data and notes of the forensic evaluator so that his retained expert could review them for the purpose of preparing for cross-examination. The husband did not seek release of this underlying information to the parties.)

In this case, involving a violation of the ban precluding an attorney from providing a copy of the forensic report to a client, Justice Goodstein opined that “[t]he circumstances surrounding this Forensic Report, as well as the instant motion for the release of the Forensic Evaluator's entire file[,] has required this Court to conduct a close examination of the issue of discovery during custody litigation regarding forensic reports and the raw data, notes, and overall entire file maintained by forensic evaluators which are compiled during the course of the evaluation process.”

The Extensive Analysis in J.F.D. v. J.D.

Justice Goodstein said that while “[d]isclosure of the notes made and the data prepared by experts is routinely permitted in areas of the law,” such disclosure has not been “routine” in custody cases in which, as the wife argued in opposition to the husband's application, the “potential for abuse ' is great” (citing Worysz v. Ratel III , 101 A.D.3d 893 (2nd Dep't). Citing the Westchester County trial court decision in Ochs v. Ochs , 193 Misc.2d 502 (Sup. Ct. Westchester Cty. 2002)), which set forth a “special circumstances” test for obtaining pretrial discovery of a forensic evaluator's notes, raw data and test results (such “special circumstances” including, for example, bias on the part of the evaluator or a deficiency in his or her report), Justice Goodstein noted that this restrictive standard “has, for the most part, been followed by the subsequent cases.”

A similar observation was made by the court in the New York County matter of CP v. AP , 32 Misc.3d 1210(A) (Sup. Ct. N.Y. Cty. 2011), which noted that “[i]n the First and Second Judicial Departments it is well established that discovery on custody matters, generally, is limited,” and further, that “[w]ith respect specifically to the notes, raw data and test results of the court-appointed forensic evaluator, the courts have consistently held that 'special circumstances' exist that support a limitation on discovery of these documents.”

Indeed, the holding and rationale of Ochs was cited, and followed, less than a month prior to Justice Goodstein's decision, in the matter of R.T. v. L.T., N.Y.L.J. 12026720926267, at *1 (Sup. Ct. Westchester Cty., decided 9/26/14). In R.T., the father sought an order directing release of the full file of the forensic evaluator, including, but not limited to, notes, records, and raw psychological data. Citing the “special circumstances” rule of Ochs , the court in R.T. found that “the father has not identified any particular bias on the part of the evaluator. He deems the report deficient based solely on her decision not to utilize certain psychological tests he deems important.” As a result, the R.T. court held that no special circumstances existed to warrant disclosure, and that such disclosure would only (as the Ochs court warned) transform the litigation into a “lengthy and expensive critique of the psychologist's methodology, rather than a test of the conclusions themselves” (citing Ochs, supra, at 509).

Proposed Bill A8342-2013

In addition to cases addressing disclosure regarding forensic evaluations, Justice Goodstein noted that his research included a review of Bill A8342-2013, proposed by Chair of the Assembly Standing Committee on the Judiciary Helene E. Weinstein, which would have amended Domestic Relations Law ” 70 and 240 as they address court-ordered forensic evaluations and reports in child custody and visitation matters (the Bill). Pursuant to the proposed amendments, parties and their counsel would have the right to receive a copy of such evaluations or reports (subject to appropriate protective orders, if warranted); and, further, there would be a rebuttable presumption that a court-ordered evaluator's file ' including, but not limited to, notes, test data, raw test materials, underlying materials provided to or relied upon by the court-ordered evaluator and any records, photographs or other evidence ' be discoverable (similarly subject to appropriate protective orders, if warranted). Failure to comply with court orders conditioning or limiting access to a forensic report would be punishable as contempt of court.

Justice Goodstein included a lengthy recitation of the justification provided for the Bill in his decision. That justification provided, for example, that “without the ability to thoroughly examine the report and challenge its contents, a litigant's right to a fair trial is severely hampered”; and that, “[i]n light of the interest at stake” ' what the court noted “is one of the oldest and most fundamental liberty interests recognized by law,” that of a parent in the “care, custody and management of his or her child/ren” ' “it is important to afford parents and litigants in child custody and visitation cases due process protections and evidentiary safeguards ' This proposal balances important due process rights against any countervailing concerns relating to a harmful impact on the child/ren subject to the litigation that may result from unfettered access to forensic reports and underlying data in child custody and visitation cases.”

Justice Goodstein concluded that he “fully agree[d]” with the Bill, opining that requiring “ special circumstances” in order to be entitled to discovery was, effectively, putting the cart before the horse. Succinctly stated, “[t]his Court fails to understand how a party can show bias on the part of the evaluator or a deficiency in the report without the careful review of the raw data and notes of the forensic evaluator.” As a result, Justice Goodstein articulated his belief that, as proposed in the Bill, there should be a rebuttable presumption in favor of pre-trial discovery of both the forensic report and the evaluator's entire file, in every case, unless a specific motion is made to restrain the release of those materials based upon a showing of substantial prejudice:

This Court believes that the weight to be given to a forensic report must be measured, not only by the conclusions rendered, but by the process taken to reach those conclusions. Custody determinations are the most important and most difficult determinations which the Court is required to make, and restricting a proper cross examination by not allowing the raw data to be distributed could be detrimental to the best interests of the child and this Court's ultimate determination. ' This Court is keenly aware of the alleged effect this may have on forensic evaluators' concerns about lengthy cross examination into their thought process and how they reached their conclusion, but the utmost important task is for the Court to be provided with the most reliable data to make such decisions when it comes to custody. The same discovery issues and cross examinations occur for a forensic accountant, and the value of a business or a party's enhanced earning capacity, means little when compared to a judge having to decide what he/she believes is in the best interests of a child, when that child's parents cannot come to that determination amongst themselves.

Having carefully undertaken this thorough analysis ' which included an analogy comparing a forensic evaluator's file with the ” Rosario ” rule requiring disclosure of pre-trial statements of witnesses in criminal cases, as well as the underlying raw data which led to such police reports (such as the police officer's preliminary notes) ' Justice Goodstein reached a conclusion that extended beyond the specific case at issue to all future custody matters appearing in his courtroom. He wrote:

[I]t is this Court's belief that the forensic evaluator's raw data, recordings, notes, tests, test results, and all material relied upon and created during the evaluation process are discoverable by both parties and by the Attorney for the Children. Likewise, this Court, while coming to this decision, shall, from this day forward, allow the parties themselves to read the report, as well as the raw material. However, the parties shall not be provided a copy of the report or the raw materials, but will be allowed to review the report and raw materials in their attorney's office with an attorney present. They will be permitted to take notes, but will be precluded from taking photos and/or copies of the report and/or the raw data. This Court's orders appointing forensic evaluators for custody purposes will address the evaluator's responsibility to maintain and provide copies of all the raw data materials to the Court, which in turn, will provide same to counsel as set forth above with the signing of a Stipulation for Release and Use of Forensic Reports and Order as outlined above. Only in doing this can a party truly assist their counsel in preparing for an effective cross-examination.

The Effect of J.F.D. v. J.D.

Having announced his intention to (in effect) incorporate into his courtroom policy going forward the major points of the defunct (for the moment) Bill A8342-2013 regarding disclosure of forensic reports and the relating underlying data, the operative question appears to be this: Will the holding of J.F.D. v. J.D. be followed by other courts? In his thoughtful and sweeping decision, Justice Goodstein has certainly taken on the role of a trailblazer, articulating policy for his own IAS Part going forward, and creating a precedent for other judges to do the same. But despite creating precedent in the general use of that term, the decision in J.F.D. did not create precedent in a legal sense, as it is not a binding decision on other trial-level courts.

However, as demonstrated by the decision in Ochs 12 years earlier, the decisions of trial level courts can have a strong impact on, and greatly influence the rationale and outcome of, other courts addressing the same issues. Where the decision in J.F.D. leads, others may follow. In addition, the J.F.D. decision comes at a time of increasing attention to, and discussion of, the extent of the access that parties, their counsel and their experts should receive to forensic evaluation reports themselves, and to the notes, test results and other underlying data that form the basis for the conclusions in those reports, as exemplified by the Bill. See, e.g., “Legislative Effort Over Disclosing Custody Forensic Reports,” NYLJ, Jan. 31, 2014, and “When Is Disclosure of Forensic Evaluator's 'Raw' File Appropriate?” NYLJ, Oct. 31, 2013. The decision in J.F.D. could certainly prompt other courts to implement the same policies in their own courtrooms in custody/access matters, in an effort to provide litigants with a more extensive set of tools by which to ensure that a court faced with such a critical decision as the custody of children will have the best and fullest view of the forensic evaluation presented to it.

Concerns

That being said, there is (and should be) some concern prompted by the trail being blazed by a single trial court in a single county, rather than through state-wide legislation like the proposed Bill. Without a single state-wide policy or mandate, the present inconsistency in how forensic evaluation reports (and the underlying data) are handled will remain, at least in some venues, and frustration with the process will continue to grow. As the court noted in Ochs , “The value of the essential role played by the court-appointed neutral forensic psychologist in custody litigation is now so well recognized that such an appointment is essentially required in any custody litigation where there are serious questions of parental fitness” (193 Misc.2d at 505), and “the neutrality of the expert and the high regard that the court must have in order to appoint a particular forensic psychologist, makes his or her report a highly significant factor for the court to consider in the context of all of the evidence presented in the case, including any expert testimony presented by the parties” (Id.). Leaving to individual courts the decision of what level of access parties, their counsel, and their experts should have to the information that would permit the best examination of that expert testimony will simply perpetuate a system in which a party's ability to fully inform the individual deciding the future of his or her child will depend upon where that party lives, and the judge to whom his or her case is assigned. In effect, it leaves a parent's trial strategy subject, in part, to geography and the figurative spin of a wheel.

As asserted in the justifications presented for the Bill (and quoted in J.F.D., supra , a “parent's interest in the care, custody and management of his or her children is one of the oldest and most fundamental liberty interests recognized by law,” and, indeed, it has been established as such by the Supreme Court of the United States. As Justice Goodstein recognizes in J.F.D., surely a determination that impacts such a fundamental right should be based upon the solid foundation of a well-considered and well-tested forensic evaluation report (should such a report be deemed necessary in the first instance). Justice Goodstein's decision in J.F.D. opens the door to the possibility that all litigants may obtain access to the tools enabling that testing to take place in as fully informed a manner as possible. In this way, the “best interests of the children” can truly be protected.

Leigh Baseheart Kahn is a Fellow of the American Academy of Matrimonial Lawyers and a partner of Mayerson Abramowitz & Kahn, LLP, which limits its practice to Matrimonial, Divorce and Family Law. She is recognized by both Best Lawyers in America and Super Lawyers.