Custody Proceedings - Evidence - Use of Experts, Evaluations, and Reports
The New York Court of Appeals adopted a policy regarding the use of experts evaluations in custody cases, in two custody cases decided during the 1960's, where traditional adversary procedure was adapted to serve the "best interests" of the children.
In Kessler v. Kessler,[1] the Court of Appeals held that in a custody proceeding the court may order forensic evaluations by impartial professionals who would be available to be called as an expert witness and testify in accordance with the common-law rules of evidence. The Court held that even without the consent of the parties the court may direct that a probation officer, family counselor attached to the court, or other qualified and impartial psychiatrists, psychologists or other professional medical personnel to make investigations, although they may not report to the court. The report could be used to furnish leads for the introduction of common-law evidence. The Court of Appeals went on to state that there was no reason which would prevent the court, in the proper exercise of judicial discretion, from calling upon such persons, to examine the infant or to examine the parents also if they will submit to such examination. However, the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of a stipulation by the parties.
In Lincoln v Lincoln, [2] the Court of Appeals held that the trial court may interview the child in camera, out of the presence of the parties and their attorneys. It observed that in Kessler it “...held that professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent. More important, the interest of the children themselves requires that the accuracy of these professional reports be established and that there be an opportunity to explain or rebut material contained in the reports. “
Another hurdle lawyers have to overcome with regard to forensic reports is that “reports”, rather than testimony, are hearsay. [3]
In Family Court proceedings it became customary for the court to order mental health examinations pursuant to Family Court Act §251, conducted by clinicians on the staff of the Family Court Mental Health Services Clinic or by another mental health expert, such as one selected and agreed to by both parties. The court could sua sponte order the examinations or order them in response to a motion by one of the parties. [4] It can be considered an abuse of discretion for the court not to order a psychiatric evaluation in a custody case in which psychological factors are critical.[5]
Mental Health examinations are available in Supreme Court custody cases by the use of the CPLR 3121 disclosure device. CPLR 3121(a) which is applicable in matrimonial actions,[6] provides that a party may be required to submit to a pretrial physical, mental or blood examination conducted by the other party whenever the physical or mental condition or blood relationship of that party ‘‘is in controversy.’’ Service of a notice to submit to a mental examination, pursuant to CPLR 3121(a), became a useful tool for many years to compel the adverse party to submit to a forensic evaluation by a party’s own expert.[7]
However, the right to conduct such an examination pursuant to CPLR 3121(a) was restricted by the Appellate Division in Rosenblitt v Rosenblitt,[8] where the issue was whether the noncustodial spouse could obtain an order directing that the custodial spouse be examined by a psychiatrist designated by the noncustodial spouse, after evaluations of the parties and the children had already been conducted by the Forensic Division of the Department of Social Services, although not yet submitted to the court. The Second Department observed that in Wegman v Wegman[9] the Court of Appeals noted that, recognizing the potential for abuse in such cases, the courts' “broad discretionary power to grant a protective order ...should provide adequate safeguards”. The Appellate Division held that where forensic examinations have been conducted and there is no showing that such examinations were in any way inadequate or deficient, it is an abuse of discretion to compel one particular party to submit to further evaluations at the insistence of the adverse party, where not a single reason is presented in support of the application. A disgruntled litigant should not be permitted to thus compel an adversary to join in his or her efforts to shop around for favorable expert testimony. While it is entirely appropriate for trial courts to call upon qualified and impartial health care professionals to render reports based upon examinations of the children and parents, courts have expressed a preference that such examinations be conducted by neutral and impartial professionals, and that it would be patently unjust to permit defendant's retained expert, who has already reached a conclusion favorable to defendant, to conduct a psychiatric evaluation of plaintiff. Under the circumstances of that case, a further evaluation of plaintiff was unnecessary and inappropriate. The court pointed out that even if it were to conclude that a further psychiatric evaluation was warranted, defendant's partisan expert would not be the proper person to conduct it.[10]
In 1988 the First Department observed that notwithstanding the absence of any explicit statutory authority, courts had been routinely appointing independent psychiatrists and psychologists in custody proceedings since 1962 when the Court of Appeals recognized its inherent power to do so in Kessler.[11] It has become a common practice for attorneys to request the court to order forensic evaluations by impartial professionals in contested custody cases, although occasionally the court will order a forensic evaluation on its own motion. Fairness and justice require that the use of secret reports by the trial court be prohibited and that the parties and counsel have access to the material relied upon by the court. The current rule in New York custody cases is that it is error for a trial court to base its determination on reports not revealed to the parties or counsel unless the parties stipulate otherwise.[12]
Supreme Court may not direct the parties and their counsel to execute a stipulation providing that “The contents of the report shall be confidential and shall be used by the Court and shall not be divulged to the parties or their attorneys”.[13] Absent consent of the parties the results of such investigation or examination cannot be deemed confidential and must be made available to the parties and their attorneys. [14]
For many years there has been disagreement among courts as to the circumstances under which the parties and their counsel may have copies of such reports and review such reports in preparation for trial. It appears that the current state of the law is unsettled with regard to whether the parties themselves are entitled to copies of the independent forensic reports ordered by the court, rather than just their attorney, and the circumstances under which they are entitled to receive and use the reports. We note that where the parties have obtained their own expert reports, there is no issue, as they are required by 22 NYCRR 202.16 (g) to file and exchange the written reports of their own experts no later than 60 days before the date set for trial.
In Scuderi-Forzano v Forzano, the Appellate Division limited the right of the parties to a custody case to see copies of such reports.[15]
The First Department has held that a pro se petitioner's application that he be provided with a copy of a forensic report to prepare for the custody trial and to permit him to take notes of the report while he reviewed it under court supervision was not improperly denied since he was permitted to review it in court. Thus, he was not denied access to the information. However, it directed petitioner should be permitted to take notes during the in-court review because he was proceeding pro se and opposing counsels had unfettered access to the report. As this issue was likely to arise again, it noted that the better practice in most cases would be to give counsel and pro se litigant’s access to the forensic report under the same conditions.[16]
The issue arose again in Sonbuchner v. Sonbuchner,[17] where the First Department held that counsel and pro se litigants should be given access to the forensic report under the same conditions. When the attorney for the represented party is given a copy of the report, the court should give the report to pro se party, even if the court set some limits on both parties' use, such as requiring that the report not be copied or requiring that the parties take notes from it while in the courthouse. Here, during the direct examination of the forensic expert, the forensic report was introduced into evidence, and plaintiff, who was proceeding pro se, had access to it before his cross-examination. On appeal, plaintiff argued that the court improperly prevented him from reviewing the report in advance of the forensic expert's direct testimony. The Appellate Division held that although the court erred in not allowing plaintiff to read the report before the expert testified, plaintiff had an opportunity when he was represented by counsel at an earlier point in the case to review the report with counsel. He also had an opportunity, long before the trial commenced, to review the report with the court-appointed social worker in the case. The record showed that plaintiff questioned the forensic expert about a number of issues that were covered in the report. Most of the expert's testimony turned on his recollection of his numerous interviews with the parties and his opinion as to the parties' parental fitness, and plaintiff had an opportunity to cross-examine him about those opinions. The court's reliance on the expert's testimony, as opposed to the report, was apparent from the fact that the court's decision cites to specific pages of that testimony. Plaintiff also was aware of the issues he had discussed during his interviews with the expert, and many of those issues were explored by plaintiff on cross-examination. The evidence about defendant's strong bond and parenting history with the child was substantial, and the court's decision on custody and relocation had ample record support. Thus, any error in not allowing plaintiff access to the report in advance was harmless and provided no basis for reversal.
[1] 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962)
[2] 24 NY2d 270, 273 [1969]
[3] Kessler v. Kessler, 10 N.Y.2d 445, 225 N.Y.S.2d 1(1962); Matter of D' Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169, (2d Dept., 2005); Kahn v. Dolly, 6 AD3d 437, 774 NYS2d 365 (2d Dept.,2004) (“reliance upon professional reports without the consent of the parties is impermissible, since such reports contain inadmissible hearsay”); Chambers v Bruce, 292 AD2d 525, 740 NYS2d 76 (2d Dept.,2002) (error to admit report into evidence); Wilson v Wilson, 226 AD2d 711, 641 NYS2d 703 ( 2d Dept., 1996).
[4] Family Court Act §251 provides, in part: "After the filing of a petition under this act over which the family court appears to have jurisdiction, the court may cause any person within its jurisdiction and the parent or other person legally responsible for the care of any child within its jurisdiction to be examined by a physician, psychiatrist or psychologist appointed or designated for the purpose by the court when such an examination will serve the purposes of this act. . ."
[5] Giraldo v. Giraldo, 85 A.D.2d 164, 447 N.Y.S.2d 466 (1st Dep't 1982), held that the Family Court had abused its discretion in failing to order an independent psychiatric evaluation once it became evident that the decision would hinge upon psychological factors. The case was remanded and referred to another judge who would consider the issues anew.
In Lee v. Halayko, 187 A.D.2d 1001, 590 N.Y.S.2d 647 (4th Dep't 1992), the Court ruled that the divorce Court did not err in failing to sua sponte order home studies before deciding custody. Both parents were well educated, intelligent people with no history of psychological problems, and neither party questioned the fitness of the other as a parent.
In Paul C. v. Tracy C., 209 A.D.2d 955, 622 N.Y.S.2d 159 (4th Dep't 1994), the Appellate Division held that the Family Court did not err in failing to order a psychological or social evaluation of the parties. The decision whether to direct the psychological or social evaluation in a child custody dispute is within the sound discretion of the court. Neither the parties nor the law guardian requested a psychological evaluation, and there was nothing in the record to indicate that the children displayed emotional problems which would make the assistance of psychological experts necessary.
[6] Wegman v Wegman, 37 NY2d 940, 941 (1974).
[7] See, for example, Proschold v Proschold, 114 Misc 2d 568, 451 NYS2d 956 (Sup Ct 1982).
[8] Rosenblitt v Rosenblitt, 107 A.D.2d 292, 486 N.Y.S.2d 741 (2d Dept. 1985)
[9] Wegman v Wegman, 37 NY2d 940, 941 (1974).
[10] See also, Meisner v Meisner (1985, 2d Dept.) 111 App Div. 2d 788, 490 NYS2d 536 (forensic examinations ordered on wife's unopposed motion, to be conducted by a court-appointed doctor, to be used as an aid to determine whether visitation is proper and, if so, whether conditions should be imposed.)
In B. v B. (1987) 134 Misc. 2d 487, 510 NYS2d 979, the court granted the mother's motion for an order, pursuant to CPLR § 3121, directing the father to appear for a psychiatric examination by the mother’s designated expert. While it was bound by the Rosenblitt decision, that case was distinguishable because the impartial examinations that the parties had already agreed to in this case had not yet been conducted, the petitioner's expert had not yet done an examination, the potential for delay was minimal, the addition examination was not harassing and the context in which the case came to the court (i.e., the breakdown of a complex joint custody arrangement in a separation agreement) was different.
In Radigan v Radigan (1985, 2d Dept.) 115 App Div. 2d 466, 495 NYS2d 703, the Appellate Division reversed an order of Special Term and granted a husband's motion to the extent of directing the wife and son to submit to an examination by a court appointed psychiatrist, on condition that he also submit to such examination and pay the cost of it. The Family Services social worker assigned to the case recommended that the wife be given custody, based on 6 ½ interviews with the parties and child. The court held that there is no restriction in CPLR § 3121(a) limiting the number of examinations and that a subsequent examination is permissible where the party seeking the examination demonstrates the necessity for it. It found that Special Term should not have denied the husband's motion for psychiatric examinations because the history of the family unit disclosed that its members had a history of using mental health professionals, and the social worker's report was made without psychiatric assistance.)
In Sardella v. Sardella, 125 A.D.2d 384, 509 N.Y.S.2d 109 (2d Dep't 1986), the Appellate Division held that trial court did not abuse its discretion by ordering the wife and child to submit to further mental examinations upon finding that the prior examinations were unsatisfactory; however, it directed that the new examinations should be performed by a neutral psychiatrist selected by the court, to eliminate the multiplicity of examinations by parties' experts which could delay determination of the case.
In Forrest v Forrest (1987, 2d Dept.) 131 App Div. 2d 425, 516 NYS2d 79, the Appellate Division affirmed an order that denied the wife's motion for a psychiatric evaluation of the husband where the parties and one child were already examined by the Forensic Services Division of the Nassau County Department of Mental Health. It held that Special Term properly denied the wife's motion for further psychiatric evaluation by the parties' respective experts ‘‘absent any indication that the investigatory and analytical efforts of the Forensic Division are deficient in any respect.’’
In Garvin v. Garvin, 162 A.D.2d 497, 556 N.Y.S.2d 699 (2d Dep't 1990), it was held that petitioner's request for psychological testing of the mother by his expert, where a neutral forensic investigation had been ordered, was premised on nothing more than a desire to bolster petitioner's credibility, a ground which has been previously held to be insufficient justification for such an examination.
[11] Zirinsky v Zirinsky, 138 A.D.2d 43, 529 N.Y.S.2d 298 (1st Dep't 1988)
[12] In Fellows v. Fellows, 25 A.D.2d 865, 270 N.Y.S.2d 143 (2d Dep't 1966) the Appellate Division observed that “in the absence of stipulation or consent by the parties, it was improper for the court below to base its determination upon probation reports and psychiatric reports which were made confidentially to the court and the contents of which were not revealed to the parties or counsel (Kessler v. Kessler, 10 N Y 2d 445; Knapp v. Knapp, 21 A D 2d 761; Matter of Johnson v. Johnson, 21 A D 2d 256).”
In Isaacs v. Murcin, 38 A.D.2d 673, 327 N.Y.S.2d 126 (4th Dep't 1971), the trial court was reversed because it relied upon a confidential report by the Probation Department when the parties had not stipulated to its use and the accuracy of the report had not been established. No opportunity had been afforded to explain or rebut material contained in the report.
In Falkides v Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dep't 1972) the Appellate Division remitted the visitation matter for a further hearing to afford the parties an opportunity to review the Probation and Family Court Clinic Reports and to cross-examine the Probation Officer, Court Psychiatrist and any others involved in making these reports, and further to afford the parties an opportunity to present testimony in opposition thereto, if they so choose. These reports were furnished to the Trial Court in this case and the record revealed that although the Court reserved the attorneys' right to go through the whole probation investigation, such opportunity was never accorded them. Moreover, the Trial Court stated that it based its custody determination on these reports. It pointed out that the law is well settled that the parties may stipulate to waive an examination of these reports and permit them to be received by the Trial Court. However, ‘professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent’ (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273). Without the stipulation of consent the reports may be made but the parties must be given an opportunity to explain or rebut the material contained in them.
In DeStefano v DeStefano, 51 A.D.2d 885 (4th Dept., 1976), the trial court ordered an investigation by the Probation Division of Family Court and psychiatric evaluations of the parties by the Family Court Clinic, with the consent of the parties. The Appellate Division held that trial court erred in holding the results of the investigation to be confidential, absent a stipulation to that effect by the parties. The consent of the parties that the investigation be undertaken cannot be construed as consent to the confidential use of the reports by the trial court in light of respondent's request that they be made available to counsel. Moreover, professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent. The best interest of the children require that the accuracy of the contents of the probation report and the psychiatric evaluations be established and that there be an opportunity to explain or rebut the material contained therein. The matter was remitted for a further hearing to afford the parties an opportunity to review the results of the probation division investigation, and the psychiatric evaluations, and to cross-examine all those involved in the making of the reports, and to afford the parties an opportunity to present testimony or other evidence in contravention thereof.
In Baumgartner v. Baumgartner, 64 A.D.2d 880, 408 N.Y.S.2d 99 (2d Dep't 1978), an action for divorce, plaintiff appealed an order of the Supreme Court as directed her and her counsel to execute a stipulation permitting a Probation Department investigation as to the custody aspects of the litigation. The Appellate Division modified the order by adding thereto a provision that, in addition to being permitted to read the report, counsel shall be permitted to examine the author thereof. The stipulation which plaintiff refused to execute provide that “The contents of the report shall be confidential and shall be used by the Court and shall not be divulged to the parties or their attorneys”. The Appellate Division pointed out that it has been held that absent a stipulation, a trial court may not hold the results of such an investigation to be confidential. Accordingly, plaintiff and her counsel were within their rights in refusing to sign the stipulation in the precise form that it was presented. However, the order of Special Term directing plaintiff and her counsel to execute the stipulation provided that “Upon the coming in to the Court of said investigation, counsel for each party hereto will be permitted to read the report, when submitted.” Moreover, in a reply affidavit submitted to the Special Term, defendant's attorney argued that “the reports in question should be made available to counsel and that the author should be subject to cross-examination.” Under these circumstances, and by so providing in the order, plaintiff's rights would be fully protected.
In Sauer v. Sauer, 67 A.D.2d 1082, 415 N.Y.S.2d 129 (4th Dep't 1979) in its memorandum the trial Court explained that the decision to grant custody to respondent was based in part on the results of a posthearing investigation conducted by the county probation department. However, this report was not made available to appellant and there was no evidence that he waived his right to examine it. The Appellate Division held that the order awarding custody must be reversed and the matter remitted to afford appellant an opportunity to explain or rebut the material it contains.
In Waldman v. Waldman, 95 A.D.2d 827, 463 N.Y.S.2d 868 (2d Dep't 1983), the wife appealed from an order that she and her husband execute a stipulation consenting to investigation by the probation department. The Appellate Division reversed that part of the order. It held while the court's power to direct a Probation Department investigation or a psychiatric examination to aid it in the determination of issues of custody or visitation is not dependent upon the consent of the parties, absent such consent the results of such investigation or examination cannot be deemed confidential and must be made available to the parties and their attorneys.
In Chrisaidos v. Chrisaidos, 170 A.D.2d 428, 565 N.Y.S.2d 536 (2d Dep't 1991), the judgment, awarded custody to the wife. In its decision the Supreme Court indicated that it had relied upon an in camera review of reports of a Court-appointed psychiatrist who had examined the parties and the child. The Appellate Division reversed and remitted the matter to the Supreme Court for a new determination. The Court held that the use of professional reports, without providing the parties with an opportunity to explain or rebut material contained therein, entails too many risks of error. The parties must be provided with all the reports which were viewed in camera by the Court. They should also have an opportunity to cross-examine the Court-appointed psychiatrist and to submit other evidence in connection with any issues raised in the reports.
[13] Baumgartner v. Baumgartner, 64 A.D.2d 880, 408 N.Y.S.2d 99 (2d Dep't 1978),
[14] Waldman v. Waldman, 95 A.D.2d 827, 463 N.Y.S.2d 868 (2d Dep't 1983)
[15] Citing Kesseler v Kesseler, 10 NY2d 445, 455; Waldman v Waldman, 95 AD2d 827; Matter of Fellows v Fellows, 25 AD2d 865; Chrisaidos v Chrisaidos, 170 AD2d 428, 429.
[16] Isidro A.-M. v. Mirta A., 74 A.D.3d 673, 902 N.Y.S.2d 362, (1st Dept. 2010)
[17] 96 A.D.3d 566, 567, 947 N.Y.S.2d 80 [1st Dept. 2012]
The New York Court of Appeals adopted a policy regarding the use of experts evaluations in custody cases, in two custody cases decided during the 1960's, where traditional adversary procedure was adapted to serve the "best interests" of the children.
In Kessler v. Kessler,[1] the Court of Appeals held that in a custody proceeding the court may order forensic evaluations by impartial professionals who would be available to be called as an expert witness and testify in accordance with the common-law rules of evidence. The Court held that even without the consent of the parties the court may direct that a probation officer, family counselor attached to the court, or other qualified and impartial psychiatrists, psychologists or other professional medical personnel to make investigations, although they may not report to the court. The report could be used to furnish leads for the introduction of common-law evidence. The Court of Appeals went on to state that there was no reason which would prevent the court, in the proper exercise of judicial discretion, from calling upon such persons, to examine the infant or to examine the parents also if they will submit to such examination. However, the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of a stipulation by the parties.
In Lincoln v Lincoln, [2] the Court of Appeals held that the trial court may interview the child in camera, out of the presence of the parties and their attorneys. It observed that in Kessler it “...held that professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent. More important, the interest of the children themselves requires that the accuracy of these professional reports be established and that there be an opportunity to explain or rebut material contained in the reports. “
Another hurdle lawyers have to overcome with regard to forensic reports is that “reports”, rather than testimony, are hearsay. [3]
In Family Court proceedings it became customary for the court to order mental health examinations pursuant to Family Court Act §251, conducted by clinicians on the staff of the Family Court Mental Health Services Clinic or by another mental health expert, such as one selected and agreed to by both parties. The court could sua sponte order the examinations or order them in response to a motion by one of the parties. [4] It can be considered an abuse of discretion for the court not to order a psychiatric evaluation in a custody case in which psychological factors are critical.[5]
Mental Health examinations are available in Supreme Court custody cases by the use of the CPLR 3121 disclosure device. CPLR 3121(a) which is applicable in matrimonial actions,[6] provides that a party may be required to submit to a pretrial physical, mental or blood examination conducted by the other party whenever the physical or mental condition or blood relationship of that party ‘‘is in controversy.’’ Service of a notice to submit to a mental examination, pursuant to CPLR 3121(a), became a useful tool for many years to compel the adverse party to submit to a forensic evaluation by a party’s own expert.[7]
However, the right to conduct such an examination pursuant to CPLR 3121(a) was restricted by the Appellate Division in Rosenblitt v Rosenblitt,[8] where the issue was whether the noncustodial spouse could obtain an order directing that the custodial spouse be examined by a psychiatrist designated by the noncustodial spouse, after evaluations of the parties and the children had already been conducted by the Forensic Division of the Department of Social Services, although not yet submitted to the court. The Second Department observed that in Wegman v Wegman[9] the Court of Appeals noted that, recognizing the potential for abuse in such cases, the courts' “broad discretionary power to grant a protective order ...should provide adequate safeguards”. The Appellate Division held that where forensic examinations have been conducted and there is no showing that such examinations were in any way inadequate or deficient, it is an abuse of discretion to compel one particular party to submit to further evaluations at the insistence of the adverse party, where not a single reason is presented in support of the application. A disgruntled litigant should not be permitted to thus compel an adversary to join in his or her efforts to shop around for favorable expert testimony. While it is entirely appropriate for trial courts to call upon qualified and impartial health care professionals to render reports based upon examinations of the children and parents, courts have expressed a preference that such examinations be conducted by neutral and impartial professionals, and that it would be patently unjust to permit defendant's retained expert, who has already reached a conclusion favorable to defendant, to conduct a psychiatric evaluation of plaintiff. Under the circumstances of that case, a further evaluation of plaintiff was unnecessary and inappropriate. The court pointed out that even if it were to conclude that a further psychiatric evaluation was warranted, defendant's partisan expert would not be the proper person to conduct it.[10]
In 1988 the First Department observed that notwithstanding the absence of any explicit statutory authority, courts had been routinely appointing independent psychiatrists and psychologists in custody proceedings since 1962 when the Court of Appeals recognized its inherent power to do so in Kessler.[11] It has become a common practice for attorneys to request the court to order forensic evaluations by impartial professionals in contested custody cases, although occasionally the court will order a forensic evaluation on its own motion. Fairness and justice require that the use of secret reports by the trial court be prohibited and that the parties and counsel have access to the material relied upon by the court. The current rule in New York custody cases is that it is error for a trial court to base its determination on reports not revealed to the parties or counsel unless the parties stipulate otherwise.[12]
Supreme Court may not direct the parties and their counsel to execute a stipulation providing that “The contents of the report shall be confidential and shall be used by the Court and shall not be divulged to the parties or their attorneys”.[13] Absent consent of the parties the results of such investigation or examination cannot be deemed confidential and must be made available to the parties and their attorneys. [14]
For many years there has been disagreement among courts as to the circumstances under which the parties and their counsel may have copies of such reports and review such reports in preparation for trial. It appears that the current state of the law is unsettled with regard to whether the parties themselves are entitled to copies of the independent forensic reports ordered by the court, rather than just their attorney, and the circumstances under which they are entitled to receive and use the reports. We note that where the parties have obtained their own expert reports, there is no issue, as they are required by 22 NYCRR 202.16 (g) to file and exchange the written reports of their own experts no later than 60 days before the date set for trial.
In Scuderi-Forzano v Forzano, the Appellate Division limited the right of the parties to a custody case to see copies of such reports.[15]
The First Department has held that a pro se petitioner's application that he be provided with a copy of a forensic report to prepare for the custody trial and to permit him to take notes of the report while he reviewed it under court supervision was not improperly denied since he was permitted to review it in court. Thus, he was not denied access to the information. However, it directed petitioner should be permitted to take notes during the in-court review because he was proceeding pro se and opposing counsels had unfettered access to the report. As this issue was likely to arise again, it noted that the better practice in most cases would be to give counsel and pro se litigant’s access to the forensic report under the same conditions.[16]
The issue arose again in Sonbuchner v. Sonbuchner,[17] where the First Department held that counsel and pro se litigants should be given access to the forensic report under the same conditions. When the attorney for the represented party is given a copy of the report, the court should give the report to pro se party, even if the court set some limits on both parties' use, such as requiring that the report not be copied or requiring that the parties take notes from it while in the courthouse. Here, during the direct examination of the forensic expert, the forensic report was introduced into evidence, and plaintiff, who was proceeding pro se, had access to it before his cross-examination. On appeal, plaintiff argued that the court improperly prevented him from reviewing the report in advance of the forensic expert's direct testimony. The Appellate Division held that although the court erred in not allowing plaintiff to read the report before the expert testified, plaintiff had an opportunity when he was represented by counsel at an earlier point in the case to review the report with counsel. He also had an opportunity, long before the trial commenced, to review the report with the court-appointed social worker in the case. The record showed that plaintiff questioned the forensic expert about a number of issues that were covered in the report. Most of the expert's testimony turned on his recollection of his numerous interviews with the parties and his opinion as to the parties' parental fitness, and plaintiff had an opportunity to cross-examine him about those opinions. The court's reliance on the expert's testimony, as opposed to the report, was apparent from the fact that the court's decision cites to specific pages of that testimony. Plaintiff also was aware of the issues he had discussed during his interviews with the expert, and many of those issues were explored by plaintiff on cross-examination. The evidence about defendant's strong bond and parenting history with the child was substantial, and the court's decision on custody and relocation had ample record support. Thus, any error in not allowing plaintiff access to the report in advance was harmless and provided no basis for reversal.
[1] 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962)
[2] 24 NY2d 270, 273 [1969]
[3] Kessler v. Kessler, 10 N.Y.2d 445, 225 N.Y.S.2d 1(1962); Matter of D' Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169, (2d Dept., 2005); Kahn v. Dolly, 6 AD3d 437, 774 NYS2d 365 (2d Dept.,2004) (“reliance upon professional reports without the consent of the parties is impermissible, since such reports contain inadmissible hearsay”); Chambers v Bruce, 292 AD2d 525, 740 NYS2d 76 (2d Dept.,2002) (error to admit report into evidence); Wilson v Wilson, 226 AD2d 711, 641 NYS2d 703 ( 2d Dept., 1996).
[4] Family Court Act §251 provides, in part: "After the filing of a petition under this act over which the family court appears to have jurisdiction, the court may cause any person within its jurisdiction and the parent or other person legally responsible for the care of any child within its jurisdiction to be examined by a physician, psychiatrist or psychologist appointed or designated for the purpose by the court when such an examination will serve the purposes of this act. . ."
[5] Giraldo v. Giraldo, 85 A.D.2d 164, 447 N.Y.S.2d 466 (1st Dep't 1982), held that the Family Court had abused its discretion in failing to order an independent psychiatric evaluation once it became evident that the decision would hinge upon psychological factors. The case was remanded and referred to another judge who would consider the issues anew.
In Lee v. Halayko, 187 A.D.2d 1001, 590 N.Y.S.2d 647 (4th Dep't 1992), the Court ruled that the divorce Court did not err in failing to sua sponte order home studies before deciding custody. Both parents were well educated, intelligent people with no history of psychological problems, and neither party questioned the fitness of the other as a parent.
In Paul C. v. Tracy C., 209 A.D.2d 955, 622 N.Y.S.2d 159 (4th Dep't 1994), the Appellate Division held that the Family Court did not err in failing to order a psychological or social evaluation of the parties. The decision whether to direct the psychological or social evaluation in a child custody dispute is within the sound discretion of the court. Neither the parties nor the law guardian requested a psychological evaluation, and there was nothing in the record to indicate that the children displayed emotional problems which would make the assistance of psychological experts necessary.
[6] Wegman v Wegman, 37 NY2d 940, 941 (1974).
[7] See, for example, Proschold v Proschold, 114 Misc 2d 568, 451 NYS2d 956 (Sup Ct 1982).
[8] Rosenblitt v Rosenblitt, 107 A.D.2d 292, 486 N.Y.S.2d 741 (2d Dept. 1985)
[9] Wegman v Wegman, 37 NY2d 940, 941 (1974).
[10] See also, Meisner v Meisner (1985, 2d Dept.) 111 App Div. 2d 788, 490 NYS2d 536 (forensic examinations ordered on wife's unopposed motion, to be conducted by a court-appointed doctor, to be used as an aid to determine whether visitation is proper and, if so, whether conditions should be imposed.)
In B. v B. (1987) 134 Misc. 2d 487, 510 NYS2d 979, the court granted the mother's motion for an order, pursuant to CPLR § 3121, directing the father to appear for a psychiatric examination by the mother’s designated expert. While it was bound by the Rosenblitt decision, that case was distinguishable because the impartial examinations that the parties had already agreed to in this case had not yet been conducted, the petitioner's expert had not yet done an examination, the potential for delay was minimal, the addition examination was not harassing and the context in which the case came to the court (i.e., the breakdown of a complex joint custody arrangement in a separation agreement) was different.
In Radigan v Radigan (1985, 2d Dept.) 115 App Div. 2d 466, 495 NYS2d 703, the Appellate Division reversed an order of Special Term and granted a husband's motion to the extent of directing the wife and son to submit to an examination by a court appointed psychiatrist, on condition that he also submit to such examination and pay the cost of it. The Family Services social worker assigned to the case recommended that the wife be given custody, based on 6 ½ interviews with the parties and child. The court held that there is no restriction in CPLR § 3121(a) limiting the number of examinations and that a subsequent examination is permissible where the party seeking the examination demonstrates the necessity for it. It found that Special Term should not have denied the husband's motion for psychiatric examinations because the history of the family unit disclosed that its members had a history of using mental health professionals, and the social worker's report was made without psychiatric assistance.)
In Sardella v. Sardella, 125 A.D.2d 384, 509 N.Y.S.2d 109 (2d Dep't 1986), the Appellate Division held that trial court did not abuse its discretion by ordering the wife and child to submit to further mental examinations upon finding that the prior examinations were unsatisfactory; however, it directed that the new examinations should be performed by a neutral psychiatrist selected by the court, to eliminate the multiplicity of examinations by parties' experts which could delay determination of the case.
In Forrest v Forrest (1987, 2d Dept.) 131 App Div. 2d 425, 516 NYS2d 79, the Appellate Division affirmed an order that denied the wife's motion for a psychiatric evaluation of the husband where the parties and one child were already examined by the Forensic Services Division of the Nassau County Department of Mental Health. It held that Special Term properly denied the wife's motion for further psychiatric evaluation by the parties' respective experts ‘‘absent any indication that the investigatory and analytical efforts of the Forensic Division are deficient in any respect.’’
In Garvin v. Garvin, 162 A.D.2d 497, 556 N.Y.S.2d 699 (2d Dep't 1990), it was held that petitioner's request for psychological testing of the mother by his expert, where a neutral forensic investigation had been ordered, was premised on nothing more than a desire to bolster petitioner's credibility, a ground which has been previously held to be insufficient justification for such an examination.
[11] Zirinsky v Zirinsky, 138 A.D.2d 43, 529 N.Y.S.2d 298 (1st Dep't 1988)
[12] In Fellows v. Fellows, 25 A.D.2d 865, 270 N.Y.S.2d 143 (2d Dep't 1966) the Appellate Division observed that “in the absence of stipulation or consent by the parties, it was improper for the court below to base its determination upon probation reports and psychiatric reports which were made confidentially to the court and the contents of which were not revealed to the parties or counsel (Kessler v. Kessler, 10 N Y 2d 445; Knapp v. Knapp, 21 A D 2d 761; Matter of Johnson v. Johnson, 21 A D 2d 256).”
In Isaacs v. Murcin, 38 A.D.2d 673, 327 N.Y.S.2d 126 (4th Dep't 1971), the trial court was reversed because it relied upon a confidential report by the Probation Department when the parties had not stipulated to its use and the accuracy of the report had not been established. No opportunity had been afforded to explain or rebut material contained in the report.
In Falkides v Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dep't 1972) the Appellate Division remitted the visitation matter for a further hearing to afford the parties an opportunity to review the Probation and Family Court Clinic Reports and to cross-examine the Probation Officer, Court Psychiatrist and any others involved in making these reports, and further to afford the parties an opportunity to present testimony in opposition thereto, if they so choose. These reports were furnished to the Trial Court in this case and the record revealed that although the Court reserved the attorneys' right to go through the whole probation investigation, such opportunity was never accorded them. Moreover, the Trial Court stated that it based its custody determination on these reports. It pointed out that the law is well settled that the parties may stipulate to waive an examination of these reports and permit them to be received by the Trial Court. However, ‘professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent’ (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273). Without the stipulation of consent the reports may be made but the parties must be given an opportunity to explain or rebut the material contained in them.
In DeStefano v DeStefano, 51 A.D.2d 885 (4th Dept., 1976), the trial court ordered an investigation by the Probation Division of Family Court and psychiatric evaluations of the parties by the Family Court Clinic, with the consent of the parties. The Appellate Division held that trial court erred in holding the results of the investigation to be confidential, absent a stipulation to that effect by the parties. The consent of the parties that the investigation be undertaken cannot be construed as consent to the confidential use of the reports by the trial court in light of respondent's request that they be made available to counsel. Moreover, professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent. The best interest of the children require that the accuracy of the contents of the probation report and the psychiatric evaluations be established and that there be an opportunity to explain or rebut the material contained therein. The matter was remitted for a further hearing to afford the parties an opportunity to review the results of the probation division investigation, and the psychiatric evaluations, and to cross-examine all those involved in the making of the reports, and to afford the parties an opportunity to present testimony or other evidence in contravention thereof.
In Baumgartner v. Baumgartner, 64 A.D.2d 880, 408 N.Y.S.2d 99 (2d Dep't 1978), an action for divorce, plaintiff appealed an order of the Supreme Court as directed her and her counsel to execute a stipulation permitting a Probation Department investigation as to the custody aspects of the litigation. The Appellate Division modified the order by adding thereto a provision that, in addition to being permitted to read the report, counsel shall be permitted to examine the author thereof. The stipulation which plaintiff refused to execute provide that “The contents of the report shall be confidential and shall be used by the Court and shall not be divulged to the parties or their attorneys”. The Appellate Division pointed out that it has been held that absent a stipulation, a trial court may not hold the results of such an investigation to be confidential. Accordingly, plaintiff and her counsel were within their rights in refusing to sign the stipulation in the precise form that it was presented. However, the order of Special Term directing plaintiff and her counsel to execute the stipulation provided that “Upon the coming in to the Court of said investigation, counsel for each party hereto will be permitted to read the report, when submitted.” Moreover, in a reply affidavit submitted to the Special Term, defendant's attorney argued that “the reports in question should be made available to counsel and that the author should be subject to cross-examination.” Under these circumstances, and by so providing in the order, plaintiff's rights would be fully protected.
In Sauer v. Sauer, 67 A.D.2d 1082, 415 N.Y.S.2d 129 (4th Dep't 1979) in its memorandum the trial Court explained that the decision to grant custody to respondent was based in part on the results of a posthearing investigation conducted by the county probation department. However, this report was not made available to appellant and there was no evidence that he waived his right to examine it. The Appellate Division held that the order awarding custody must be reversed and the matter remitted to afford appellant an opportunity to explain or rebut the material it contains.
In Waldman v. Waldman, 95 A.D.2d 827, 463 N.Y.S.2d 868 (2d Dep't 1983), the wife appealed from an order that she and her husband execute a stipulation consenting to investigation by the probation department. The Appellate Division reversed that part of the order. It held while the court's power to direct a Probation Department investigation or a psychiatric examination to aid it in the determination of issues of custody or visitation is not dependent upon the consent of the parties, absent such consent the results of such investigation or examination cannot be deemed confidential and must be made available to the parties and their attorneys.
In Chrisaidos v. Chrisaidos, 170 A.D.2d 428, 565 N.Y.S.2d 536 (2d Dep't 1991), the judgment, awarded custody to the wife. In its decision the Supreme Court indicated that it had relied upon an in camera review of reports of a Court-appointed psychiatrist who had examined the parties and the child. The Appellate Division reversed and remitted the matter to the Supreme Court for a new determination. The Court held that the use of professional reports, without providing the parties with an opportunity to explain or rebut material contained therein, entails too many risks of error. The parties must be provided with all the reports which were viewed in camera by the Court. They should also have an opportunity to cross-examine the Court-appointed psychiatrist and to submit other evidence in connection with any issues raised in the reports.
[13] Baumgartner v. Baumgartner, 64 A.D.2d 880, 408 N.Y.S.2d 99 (2d Dep't 1978),
[14] Waldman v. Waldman, 95 A.D.2d 827, 463 N.Y.S.2d 868 (2d Dep't 1983)
[15] Citing Kesseler v Kesseler, 10 NY2d 445, 455; Waldman v Waldman, 95 AD2d 827; Matter of Fellows v Fellows, 25 AD2d 865; Chrisaidos v Chrisaidos, 170 AD2d 428, 429.
[16] Isidro A.-M. v. Mirta A., 74 A.D.3d 673, 902 N.Y.S.2d 362, (1st Dept. 2010)
[17] 96 A.D.3d 566, 567, 947 N.Y.S.2d 80 [1st Dept. 2012]
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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