Position Statement

A.290 / S-7089
Access to Forensic Mental Health Evaluations

Oppose

WBASNY strongly opposes those portions of A.290/S-7089 that provide for release of forensic reports, notes and raw data to the parties, including pro se litigants. We are particularly concerned about the great potential for the intentional or unintentional release of the contents of forensic reports, notes and raw data to the parties’ children and the public. Contempt is not enough of a deterrent, and a contempt proceeding will only add to the cost and delay of custody litigation. In this regard, we concur with the position of the NYSBA Family Law Section.

We are particularly concerned that victims of domestic violence will be harmed by this Bill. If parties are given copies of forensic reports, an abuser can easily inflict more abuse on the victim by making the contents of the report public.

Providing forensic evaluation reports to parents directly will have a chilling effect on the use of forensic evaluations, which are an important tool in custody matters, because courts will be reluctant to order forensic reports knowing how they may be misused. The bill will burden overburdened courts with the need to issue protective orders and delay cases, which will harm children and families.

It is not a violation of due process to have pro se litigants and parties read the report in court or an attorney’s office. This is still access to the report. There has always been a history of extreme caution in protecting the report. Since a pro-se litigant has a right to defend or put forth the report, then he/she has a right to view it-but that should be done properly with safeguards recognizing that both parties and pro se litigants can sometimes lose sight of their children’s interests in favor of their own and use the report in wholly unintended and inappropriate ways, including posting on the Internet.

We firmly believe that the Bill should require counsel and retained experts who receive forensic reports and files should execute confidentiality agreements acceptable to the Court.

We do, however, support that portion of the Bill that allows for the release of a forensic examiner’s entire file to counsel only and to pro se litigants to review file in Court prior to Litigation. We do not believe that a CPLR 3120 demand is even necessary; the Forensic’s notes and raw data should be as available to counsel as the report itself. Recent decisions from Nassau and Westchester counties have directed the release of the entire file to counsel with strong pronouncements in favor of such release: “Custody determinations should not be made based upon a black box. All of the underlying information, which is unquestionably relevant and material, must be provided to counsel, who must be fully equipped to cross-examine the forensic evaluator and establish for the Court, as trier of fact, the credibility and reliability of the opinions and conclusions expressed by the neutral forensic evaluator.” K.C. v. J.C., 50 Misc.3d 892, 25 N.Y.S.3d 798 (Supreme Court, Westchester Co. 2015). We are in favor of a codification of the holding in K.C. v. J.C., and J.F.D. v. J.D., 45 Misc.3d 1212(A) (Supreme Court, Nassau Co. 2014).