Custody Proceedings - Evidence - Admissibility of child abuse reports
In any proceeding brought to determine the custody or visitation of minors, a report, or a portion of a report, which was made to the statewide central register of child abuse and maltreatment,[1] which is otherwise admissible as a business record pursuant to Rule 4518 of the Civil Practice Law and Rules, is not admissible in evidence, notwithstanding the rule, unless:
● An investigation of the report conducted pursuant the Social Service Law has determined that there is some credible evidence of the alleged abuse or maltreatment, and
● The subject of the report has been notified that the report is indicated, and
● The report, or relevant portion of the report, has not been amended or expunged by the State Commissioner of Social Services or his or her designated agent.[2]
If the report has been reviewed by the State Commissioner of Social Services or the Commissioner's designee and has been expunged, it is not to be admissible in evidence.[3] Similarly, if the report has been reviewed and amended to delete any finding, each deleted finding is inadmissible.[4]
If the report has been amended to add any new finding, each new finding, together with any portion of the original report not deleted, is admissible if it meets the other requirements of this section and is otherwise admissible as a business record.[5]
If the report, or portion of the report, is admissible in evidence but is uncorroborated, it is not to be sufficient to make a fact finding of abuse or maltreatment in such proceeding. However, any other evidence tending to support the reliability of the report will be sufficient corroboration.[6]
[1] The Social Services Law specifies the procedure to be followed to seek an expungement or amendment of a child abuse report. See Social Services Law §§411 et seq.
[2] Social Services Law §412; Family Court Act §651-a.
In Matter of Gloria DD, 99 A.D.3d 1044, 952 N.Y.S.2d 785 (3d Dept., 2012) a proceeding for violation of a dispositional order, the Appellate Division rejected Respondents argument that Family Court erred by admitting into evidence, the contents of a report filed with the Child Protective Services hotline alleging that the children had been abused while in foster care. The Appellate Division pointed out that Social Services Law § 422 [4][e] provides that "[r]eports made pursuant to this title ... shall be confidential and shall only be made available to ... a court, upon a finding that the information in the record is necessary for the determination of an issue before the court" While such a finding was not expressly made by the court prior to admitting the report, a caseworker had already testified without objection that respondent's daughter, when informed of the report, claimed that the allegations of abuse were not true. The daughter also stated to the caseworker that she believed respondent was responsible for filing it. As such, the report, and the circumstances under which it was made, were relevant on the issue as to whether respondent filed it knowing that the allegations were false and, as a result, she had engaged in conduct that was clearly not in the children's best interests.
[3] In K. v. K., 126 Misc. 2d 624, 483 N.Y.S.2d 602 (Sup. Ct. 1984) Supreme Court held that even though both parents consented to discovery of the files of the child protective service regarding abuse reports initiated by the father against the mother, such discovery would not be permitted. Since the child protective services found the reports to be unfounded, all information identifying the subject of the report had been expunged as mandated by law, and thus the records were not available to the parties. Furthermore, a party could not depose the child protective services' investigator since that would be an impermissible attempt to circumvent the law requiring expungement of unfounded reports.
[4] Domestic Relations Law §240(1-a).
[5] Domestic Relations Law §240(1-a).
[6] Domestic Relations Law §240(3); Family Court Act §656.
In any proceeding brought to determine the custody or visitation of minors, a report, or a portion of a report, which was made to the statewide central register of child abuse and maltreatment,[1] which is otherwise admissible as a business record pursuant to Rule 4518 of the Civil Practice Law and Rules, is not admissible in evidence, notwithstanding the rule, unless:
● An investigation of the report conducted pursuant the Social Service Law has determined that there is some credible evidence of the alleged abuse or maltreatment, and
● The subject of the report has been notified that the report is indicated, and
● The report, or relevant portion of the report, has not been amended or expunged by the State Commissioner of Social Services or his or her designated agent.[2]
If the report has been reviewed by the State Commissioner of Social Services or the Commissioner's designee and has been expunged, it is not to be admissible in evidence.[3] Similarly, if the report has been reviewed and amended to delete any finding, each deleted finding is inadmissible.[4]
If the report has been amended to add any new finding, each new finding, together with any portion of the original report not deleted, is admissible if it meets the other requirements of this section and is otherwise admissible as a business record.[5]
If the report, or portion of the report, is admissible in evidence but is uncorroborated, it is not to be sufficient to make a fact finding of abuse or maltreatment in such proceeding. However, any other evidence tending to support the reliability of the report will be sufficient corroboration.[6]
[1] The Social Services Law specifies the procedure to be followed to seek an expungement or amendment of a child abuse report. See Social Services Law §§411 et seq.
[2] Social Services Law §412; Family Court Act §651-a.
In Matter of Gloria DD, 99 A.D.3d 1044, 952 N.Y.S.2d 785 (3d Dept., 2012) a proceeding for violation of a dispositional order, the Appellate Division rejected Respondents argument that Family Court erred by admitting into evidence, the contents of a report filed with the Child Protective Services hotline alleging that the children had been abused while in foster care. The Appellate Division pointed out that Social Services Law § 422 [4][e] provides that "[r]eports made pursuant to this title ... shall be confidential and shall only be made available to ... a court, upon a finding that the information in the record is necessary for the determination of an issue before the court" While such a finding was not expressly made by the court prior to admitting the report, a caseworker had already testified without objection that respondent's daughter, when informed of the report, claimed that the allegations of abuse were not true. The daughter also stated to the caseworker that she believed respondent was responsible for filing it. As such, the report, and the circumstances under which it was made, were relevant on the issue as to whether respondent filed it knowing that the allegations were false and, as a result, she had engaged in conduct that was clearly not in the children's best interests.
[3] In K. v. K., 126 Misc. 2d 624, 483 N.Y.S.2d 602 (Sup. Ct. 1984) Supreme Court held that even though both parents consented to discovery of the files of the child protective service regarding abuse reports initiated by the father against the mother, such discovery would not be permitted. Since the child protective services found the reports to be unfounded, all information identifying the subject of the report had been expunged as mandated by law, and thus the records were not available to the parties. Furthermore, a party could not depose the child protective services' investigator since that would be an impermissible attempt to circumvent the law requiring expungement of unfounded reports.
[4] Domestic Relations Law §240(1-a).
[5] Domestic Relations Law §240(1-a).
[6] Domestic Relations Law §240(3); Family Court Act §656.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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