| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jan 30, 2018 |
print number 6579a |
| Jan 30, 2018 |
amend and recommit to children and families |
| Jan 03, 2018 |
referred to children and families |
| Jun 05, 2017 |
referred to rules |
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Senate Bill S6579A
2017-2018 Legislative Session
Provides for court ordered forensic evaluations in child custody and visitation cases
download bill text pdfSponsored By
(D) Senate District
Archive: Last Bill Status - In Senate Committee Children And Families Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Bill Amendments
2017-S6579 - Details
- Current Committee:
- Senate Children And Families
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§70 & 240, Dom Rel L; amd §§251 & 651, Fam Ct Act
2017-S6579 - Sponsor Memo
BILL NUMBER: S6579
TITLE OF BILL :
An act to amend the domestic relations law and the family court act,
in relation to child custody forensic reports
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his
Matrimonial Practice Advisory Committee.
The subject of access to forensic reports has been widely discussed in
the legal community over the last few years. In January, 2013, three
different rule proposals were published to permit public comment on
this subject. The Family Court Advisory and Rules Committee (FCARC),
the former Matrimonial Practice Advisory Committee, and the New York
State Bar Association Committee on Children and the Law (NYSBA) each
submitted a proposal for a court rule regarding access to forensic
evaluation reports in child custody cases by counsel, parties and
self-represented litigants (see
http://www.nycourts.gov/rules/comments/PDF/
Forensic-Reports-PC-packet.pdf). The proposals differed with respect
to the terms on which self-represented litigants would have access to
the reports.
Before any court rule was adopted, legislation on the subject was
introduced in the 2013- 14 legislative session (Assembly 8342).
Consideration of the proposals by the Administrative Board of the
Courts was suspended pending possible action on this legislation. A
new version of this legislation was introduced as Assembly 290 in the
2015 session. Our Advisory Committee was concerned as to Assembly
8342-A - and this concern carried over to its 2015-16 version. The
Committee expressed these concerns in its 2016 Annual Report to the
Chief Administrative Judge. The Committee wrote that it believes there
to be a real danger that the dissemination to the public of the
reports could cause long lasting damage and embarrassment to many, and
concerns for this must outweigh reasonable restrictions imposed on
self-represented litigants. Attorneys and other forensic experts are
subject to professional discipline if reports are released, while
parties, including self-represented litigants, face only potential
contempt charges, which are unlikely to result in a meaningful remedy
for innocent victims including children whose personal lives are
exposed.
Last spring, memoranda echoing these concerns in opposition to the
bill were sent to legislators by the Family Law Section of the State
Bar Association, the Women's Bar Association of the State of New York,
and the New York Chapter of the Academy of Matrimonial Lawyers. In
addition, Hon. Sondra Miller, former Chairwoman of the Miller
Commission{1} and an Honorary Chair of our Advisory Committee, sent
her own letter of opposition to Senator Diane Savino, sponsor of
Senate 7089, the Senate counterpart to Assembly 290.
Mindful that there are differing views among the legal communities as
to dissemination of forensic reports in custody cases to
self-represented litigants, we submit this measure, which we hope will
resolve the differences as to treatment of self-represented litigants
by providing access to the report and the complete evaluator's files
to the parties including self-represented litigants, attorneys,
licensed independent forensic experts hired to assist the attorneys,
and the attorney for the child, on terms which respect the due process
rights of self-represented and represented litigants, while providing
better protections against unauthorized dissemination than were
contained in the original legislation. As in the legislation
introduced last year, access to the evaluator's file will include
access to the entire file related to the proceeding including, but not
limited to, all underlying 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. This measure
incorporates many of the provisions suggested by the various groups
and individuals who submitted memos of opposition in the past. Some of
the key provisions in the measure are as follows:
ACCESS TO THE FORENSIC REPORT AND FILES
This measure differs from the past legislation in that the degree of
protections against dissemination are more stringent for parties and
self-represented litigants than they are for attorneys and attorneys
for the children, who are officers of the court. While this measure
permits attorneys and independent licensed forensic evaluators hired
to assist attorneys and self-represented litigants to have a copy of
the forensic report upon execution of an affidavit containing
assurances to the court against further dissemination and return of
the report and files at the conclusion of the litigation, the measure
does not permit parties or self-represented litigants to have a copy
of the report. Instead, it would allow a represented party to read the
report in the office of his or her attorney, to discuss the report
with the attorney, and to make notes about the report, while it would
allow self-represented parties to read the report at the court or
other location and to make notes about the report.
Similarly, this measure would permit licensed independent forensic
evaluators hired to assist attorneys or self-represented litigants to
have access to the complete evaluator's file upon execution of an
affidavit containing assurances to the court against further
dissemination and return of the report and files at conclusion of the
litigation. Attorneys are provided access to the file for inspection
and photocopying without having to make a demand under CPLR rule 3120.
This avoids needless motion practice which results in delays and
expense. The complete file also must be forwarded and made available
to self-represented litigants at a court or other location for
inspection and note taking, but not for photocopying. The measure
strikes a common sense compromise. By assuring self-represented
litigants the right to inspect and take notes on what is in the file,
it enables them to represent themselves at trial, but guards against
dissemination of materials in the file by photocopying. The measure
retains the language in the past legislation providing that access to
the report and files in all cases is subject to the provisions of
section 3101 of the CPLR as to the court's issuance of a protective
order.
THE REMEDY OF CONTEMPT
This measure retains the provision in the past legislation that
willful failure to comply with a court order conditioning or limiting
access to a forensic report shall be contempt of court. However,
because contempt for dissemination in violation of a court order years
after a case is resolved is not a practical or legally-enforceable
remedy as the case law now requires,{2} the measure adds a provision
that the court shall retain jurisdiction for purposes of an
application for contempt. The measure also expands the contempt
provisions to apply not just to violations of a protective order
issued by the court, but also to violations of the statute regarding
restrictions on dissemination of the report or the file or of an
affidavit with regard thereto. The measure also allows the moving
party to seek counsel fees to enforce or defend the application for
contempt, which helps alleviate the unfair burden and expense of
making such a motion; but we recognize that movants would nevertheless
face a hardship in moving for contempt. While these provisions do not
make the remedy of contempt sufficient in itself to protect against
dissemination of private information of innocent parties, and do not
protect non-parties, they are recommended as a n additional safeguard
to last year's legislation. Ultimately, it is the additional
protections against dissemination in this measure that provide the
essential safeguards.
ADMISSIBILITY OF FORENSIC REPORTS INTO EVIDENCE
Assembly 290 contained a provision that forensic reports and the
evaluator's file shall be subject to objection pursuant to the rules
of evidence and subject to cross-examination. In custody and
visitation trials and hearings, such a rule will result in substantial
delays if the report is not admitted in lieu of direct testimony.
Instead, the instant measure borrows a provision from 22 NYCRR §
202.16(g)(2), which provides that written reports may be used to
substitute for direct testimony at trial, that the reports shall be
submitted by the expert under oath, and that the expert shall be
present and available for cross-examination. Without this provision,
trial days will be increased. This provision is part of the
matrimonial rules for calendar control contained in 22 NYCRR § 202.16.
This provision respects the rights of the parties to confront the
expert through cross-examination without wasting time of the court
ruling on motions about admissibility. It is designed to reduce delays
in divorce proceedings. In addition to the right of cross-examination
of the expert, this measure includes the request put forth by the
Family Law
Section of the New York State Bar to restrict the judge's reading the
report as discussed below,{3} with a proviso allowing the judge to
read the report at commencement of trial or hearing or before
accepting an agreement of the parties, subject to objections made at
any time. The right to object to portions of the report is in
accordance with a suggestion made by Hon. Alan Scheinkman in West
McKinney's Forms.{4}
REVIEW OF THE REPORT IN ADVANCE OF A TRIAL OR HEARING
This measure inserts a new provision restricting the court from
reading or reviewing the forensic report until it is received in
evidence at a trial or hearing unless the parties consent by agreement
on the record or by stipulation submitted to the court, or upon
application to the court for good cause shown. This provision was
added to protect the due process rights of persons mentioned in the
report negatively. However, courts should not make decisions on child
custody or visitation without reading a forensic report in existence
which might contain information the court must take into account if it
withstands objection (e.g., information as to domestic violence or
abuse which is statutorily mandated to be factored into a custody
decision). Also, forensic reports sometimes enable courts to encourage
settlements because the court is aware of detrimental information
against the parties. Therefore, we have added a proviso that the court
may read or review the report at the commencement of a trial or
hearing (so as not to need to halt a trial or hearing to first read
the report), subject to further objection, or before accepting an
agreement between the parties in its determination concerning child
custody in its role as parens patriae, also subject to further
objection. Thus this measure protects due process while at the same
time allowing the court to have information it should have. If the
forensic report is filled with unscientific and/or unsubstantiated or
non-professionally reliable hearsay allegations,5 the measure permits
objections to be made at any time, before or after the trial or
hearing or the determination as to custody. If the objection is made
after the Judge has reviewed the report, and if the court sustains the
objection, the court will take into account the inadmissibility of the
report and will provide for redaction of inadmissible portions, just
as courts take into account inadmissibility of evidence they see every
day in the courtroom as they must do under New York law (see Johnson
v. Lutz, 253 N.Y. 124, (1930)).
SELF-REPRESENTED LITIGANTS
This measure strikes a fair balance between due process concerns as
expressed in the First Department decision in Sonbuchner v.
Sonbuchner, 96 A.D.3d 566 (App. Div. 2012), and rights of innocent
parties not to have the most intimate details of their lives
disseminated over the Internet and by other improper means.
Self-represented litigants are often individuals who could afford
counsel or who could have assigned counsel appointed for them pursuant
to section 35(8) of the Judiciary Law or section 262 of the Family
Court Act in a custody and visitation proceeding, but who choose to
represent themselves. If self-represented litigants refuse assigned
counsel, or discharge their counsel in order to represent themselves,
they in effect assume the risk that they will not be given a copy of
the report and the file, but will only be allowed to read it and take
notes, and could be so allocuted. For those few self-represented
litigants who would like to be represented by counsel but do not
qualify for assigned counsel, there are help centers and law libraries
at courthouses around the state available to self-represented
litigants, in addition to programs by many bar associations providing
low cost legal representation.{6}
In addition, we note that there are other circumstances where
attorneys and self-represented litigants are treated differently in
the judicial process and these instances do not constitute due process
violations. These differences in treatment range from how litigants
enter a courthouse, to the screening that they must undergo, to the
requirements as to attorneys being escrow agents while
self-represented litigants are not. In certain instances, judicial
discretion allows self-represented litigants greater leeway than
represented litigants, such as the ability to testify in the narrative
or to introduce an exhibit without formality. We believe that
reasonable advantages afforded to self-represented litigants along
with reasonable restrictions imposed upon self-represented litigants
are, to some extent, unavoidable consequences of the fact that
self-represented litigants are not trained and licensed members of the
bar.
SUMMARY
Some have argued that forensic reports should be subject to higher
standards of scientific reliability and that the preparers of such
reports should be subject to more rigorous examination as to their
qualifications. We share these concerns and recommend that counsel and
the parties should be encouraged to utilize the Mental Health
Professionals Certification Committee established in the First and
Second Departments to review qualifications and report complaints as
to forensic evaluators.{7} When prepared competently and utilized by
the court, forensic reports are a valuable and necessary tool for the
court to access important information prepared by experts in the field
which can lead to better custody and visitation decisions. It is
important that uniform standards be established on a statewide basis
to determine access to such reports and files by all who need them
during custody and visitation litigation. It is also important to set
rules as to admissibility into evidence and reading of the report,
which allow the court to have the information it needs but which
protect the rights of parties to raise objections to the
qualifications of the expert or to inadmissible hearsay in the report
and to cross examine the expert. This measure achieves these goals in
a fair manner, protecting due process with adequate safeguards against
violation of privacy, while at the same time promoting the efficiency
of the custody and visitation litigation process by eliminating
unnecessary motion practice and trials related to direct testimony
contributing to delays in custody determinations where practicable.
This measure shall take effect 90 days after it becomes a law,
provided, however, that the Chief Administrative Judge, with the
approval of the Administrative Board of the Courts, would be
authorized, effective immediately, to promulgate any rules necessary
to implement the provisions of this measure.
LEGISLATIVE HISTORY :
None. New proposal.
{1} See Matrimonial Commission, Report to the Chief Judge of the State
of New York (Feb 2006), available at www.courts.state.
ny.us/ip/matrimonial-commission.
{2} See Blatt v. Rae, 37 Misc. 2d 85 (Sup. Ct. 1962) stating that "A
judgment determines the rights of the parties to an action (Civ.
Prac. Act, § 472) and after the entry thereof the action is no longer
pending and the provisions of section 753 of the Judiciary Law have no
application since, by the very language of such section, its
provisions are limited to pending actions)." See also Kenford Co. v.
Cty. of Erie, 185 A.D.2d 658 (1992), stating: "A motion must be
addressed to a pending action, and Supreme Court was without
jurisdiction to entertain a motion almost two years after final
judgment was entered." See also EB v. EFB, 7 Misc. 3d 423, 427-28
(Sup. Ct.), affd sub nom. Bjornson v. Bjornson, 20 A.D.3d 497 (2005),
Little Prince Prods., Ltd. v. Scoullar, 258 A.D.2d 331 (1999).
{3} This measure permits the Judge to read the report on consent of
the parties and their counsel or upon application to the court for
good cause shown.
{4} See § 17:35. Court rules governing matrimonial actions-Expert
witnesses; reports and testimony as follows: "In an effort to reduce
trial time, the court may allow the written report of the expert to be
used in lieu of direct testimony at trial. 22 NYCRR § 202.16(g)(2);
N.Y. Ct. Rules, § 202.16(g)(2) (Uniform Civil Rules for the Supreme
Court and the County Court). However, doing so may run the risk that
inadmissible material, such as inadmissible hearsay, set forth in the
report comes into evidence. The court may need to offer the parties
the opportunity to object to admission of particular portions of the
report. (West McKinney's Forms, 2016 Update).
{5} See State v. Hall, 96 A.D.3d 1460 (2012); Greene v. Robarge, 104
A.D.3d 1073 (2013); and In re Kaitlyn X., 122 A.D.3d 1170, 1171-72
(2014), all upholding lower courts' reliance on the professionally
reliable hearsay exception "which enables an expert witness to provide
opinion evidence based on otherwise inadmissible hearsay, provided it
is demonstrated to be the type of material commonly relied on in the
profession" (Hinlicky v. Dreyfuss, 6 N.Y.3d 636, 648 (2006)).
{6} See the CourtHelp website on the UCS Internet Site designed for
self-represented litigants at http://www.nycourts.gov/courthelp/
GoinizToCourt/gettingHelp.shtml
{7} See 22NYCRR 623, Rules of the Supreme Court, Appellate Division,
First Department, at http://insideucs.org/ji/MatriSeminar/2011
/materials/Part 623 Mental Health Professionals Panel.pdf, and 22
NYCRR 690, Rules of the Supreme Court, Appellate Division, Second
Department at http://insideucs.org/ji/MatriSeminar/2011/materials
/Part 680 Mental Health Professionals Panel.pdf
2017-S6579 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
6579
2017-2018 Regular Sessions
I N S E N A T E
June 5, 2017
___________
Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Rules
AN ACT to amend the domestic relations law and the family court act, in
relation to child custody forensic reports
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 70 of the domestic relations law is amended by
adding a new subdivision (c) to read as follows:
(C) WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION
OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL, A
PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON
AUTHORIZED BY STATUTE, ALL OF WHOM SHALL BE CONSIDERED "COURT ORDERED
EVALUATORS" FOR PURPOSES OF THIS SUBDIVISION, APPOINTED BY THE COURT TO
ASSIST WITH THE DETERMINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO
THIS ARTICLE, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS
AND INVESTIGATIONS:
(1) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF
THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT
OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE
PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA-
BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR,
TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION,
SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND
THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY
SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT,
PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT
GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER
PARAGRAPH TWO OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE
REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS
SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09905-01-7 S. 6579 2 AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMITATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISA- BILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENTED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARAGRAPH TWO OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRESENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALUATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (2) THE COURT ORDER APPOINTING SAID EVALUATORS SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE INCLUDING WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (3) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT, OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW, AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE S. 6579 3 OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW, AS THE CASE MAY BE; AND (4) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (5) THE COURT SHALL NOT READ OR REVIEW THE FORENSIC REPORT UNTIL IT IS RECEIVED IN EVIDENCE AT TRIAL OR AT A HEARING, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPULATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT OR UPON APPLICATION TO THE COURT FOR GOOD CAUSE SHOWN; PROVIDED, HOWEVER, THAT THE COURT MAY READ OR REVIEW THE FORENSIC REPORT AT COMMENCEMENT OF A TRIAL OR A HEARING, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER THE TRIAL OR HEARING, AND MAY READ THE REPORT BEFORE ACCEPTING AN AGREE- MENT BETWEEN THE PARTIES IN ITS DETERMINATION CONCERNING CHILD CUSTODY OR VISITATION PURSUANT TO THIS ARTICLE, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER SUCH DETERMINATION; AND (6) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new paragraph (a-3) to read as follows: (A-3) WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL, A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, ALL OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALUATORS" FOR PURPOSES OF THIS PARAGRAPH, APPOINTED BY THE COURT TO ASSIST WITH THE DETERMINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS SECTION, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTIGATIONS: (1) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS PARAGRAPH, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT, PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS PARAGRAPH WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING THE TRIAL. ANY CONDITIONS OR LIMITATIONS IMPOSED BY THE COURT PURSUANT TO THIS PARAGRAPH RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISA- BILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A S. 6579 4 COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW AND REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENTED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRESENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALUATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (2) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE INCLUDING WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (3) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS PARAGRAPH REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS PARAGRAPH REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS PARAGRAPH REGARD- ING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICI- ARY LAW AS THE CASE MAY BE; AND (4) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- S. 6579 5 TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (5) THE COURT SHALL NOT READ OR REVIEW THE FORENSIC REPORT UNTIL IT IS RECEIVED IN EVIDENCE AT TRIAL OR AT A HEARING, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPULATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT OR UPON APPLICATION TO THE COURT FOR GOOD CAUSE SHOWN; PROVIDED, HOWEVER, THAT THE COURT MAY READ OR REVIEW THE FORENSIC REPORT AT COMMENCEMENT OF A TRIAL OR A HEARING, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER THE TRIAL OR HEARING, AND MAY READ THE REPORT BEFORE ACCEPTING AN AGREE- MENT BETWEEN THE PARTIES IN ITS DETERMINATION CONCERNING CHILD CUSTODY OR VISITATION PURSUANT TO THIS SECTION, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER SUCH DETERMINATION; AND (6) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 3. Subdivision (c) of section 251 of the family court act is relet- tered subdivision (d) and a new subdivision (c) is added to read as follows: (C) NOTWITHSTANDING THE PROVISIONS OF THIS SECTION TO THE CONTRARY, WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL, A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, ALL OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALUATORS" FOR PURPOSES OF THIS SUBDIVISION, APPOINTED BY THE COURT TO ASSIST WITH THE DETERMINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS ARTICLE, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTI- GATIONS: (1) NOTWITHSTANDING SECTION ONE HUNDRED SIXTY-FIVE OF THIS ACT AND SECTION FOUR HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, THE PROVISIONS AND LIMITATIONS OF SECTIONS THREE THOUSAND ONE HUNDRED AND ONE AND THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY; AND (2) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT, PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER PARAGRAPH THREE OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE, EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMI- TATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISABILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY S. 6579 6 PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENT- ED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARA- GRAPH THREE OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRE- SENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALU- ATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (3) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE INCLUDING WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (4) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW AS THE CASE MAY BE; AND (5) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- S. 6579 7 TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (6) THE COURT SHALL NOT READ OR REVIEW THE FORENSIC REPORT UNTIL IT IS RECEIVED IN EVIDENCE AT TRIAL OR AT A HEARING, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPULATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT OR UPON APPLICATION TO THE COURT FOR GOOD CAUSE SHOWN; PROVIDED, HOWEVER, THAT THE COURT MAY READ OR REVIEW THE FORENSIC REPORT AT COMMENCEMENT OF A TRIAL OR A HEARING, SUBJECT TOT FURTHER OBJECTION MADE PRIOR TO OR AFTER THE TRIAL OR HEARING, AND MAY READ THE REPORT BEFORE ACCEPTING AN AGREE- MENT BETWEEN THE PARTIES IN ITS DETERMINATION CONCERNING CHILD CUSTODY OR VISITATION PURSUANT TO THIS ARTICLE, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER SUCH DETERMINATION; AND (7) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 4. Section 651 of the family court act is amended by adding a new subdivision (g) to read as follows: (G) NOTWITHSTANDING THE PROVISIONS OF THIS SECTION TO THE CONTRARY, WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL, A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, ALL OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALUATORS" FOR PROPOSES OF THIS SUBDIVISION, APPOINTED BY THE COURT TO ASSIST WITH THE DETERMINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS PART, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTIGATIONS: (1) NOTWITHSTANDING SECTION ONE HUNDRED SIXTY-FIVE OF THIS ACT AND SECTION FOUR HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, THE PROVISIONS AND LIMITATIONS OF SECTIONS THREE THOUSAND ONE HUNDRED ONE AND THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY; AND (2) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT; PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER PARAGRAPH THREE OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMI- TATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISABILITY; EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID S. 6579 8 REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENT- ED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARA- GRAPH THREE OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRE- SENTED LITIGANT; PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALU- ATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (3) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE INCLUDING WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (4) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW AS THE CASE MAY BE; AND (5) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND S. 6579 9 (6) THE COURT SHALL NOT READ OR REVIEW THE FORENSIC REPORT UNTIL IT IS RECEIVED IN EVIDENCE AT TRIAL OR AT A HEARING, UNLESS OTHERWISE AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPULATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN CURT OR UPON APPLICATION TO THE COURT FOR GOOD CAUSE SHOWN; PROVIDED, HOWEVER, THAT THE COURT MAY READ OR REVIEW THE FORENSIC REPORT AT COMMENCEMENT OF A TRIAL OR A HEARING, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER THE TRIAL OR HEARING, AND MAY READ THE REPORT BEFORE ACCEPTING AN AGREE- MENT BETWEEN THE PARTIES IN ITS DETERMINATION CONCERNING CHILD CUSTODY OR VISITATION PURSUANT TO THIS PART, SUBJECT TO FURTHER OBJECTION MADE PRIOR TO OR AFTER SUCH DETERMINATION; AND (7) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 5. This act shall take effect on the ninetieth day after it shall have become a law; provided, however, that effective immediately the chief administrator of the courts, with the approval of the administra- tive board of the courts, is authorized and directed to promulgate any rules necessary to implement the provisions of this act on or before such effective date.
2017-S6579A (ACTIVE) - Details
- Current Committee:
- Senate Children And Families
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§70 & 240, Dom Rel L; amd §§251 & 651, Fam Ct Act
2017-S6579A (ACTIVE) - Sponsor Memo
BILL NUMBER: S6579A
SPONSOR: AVELLA
TITLE OF BILL: An act to amend the domestic relations law and the
family court act, in relation to child custody forensic reports
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge on the recommendation of his Matrimonial
Advisory Committee.
This measure addresses the availability of forensic reports in child
custody matters. These reports have been widely discussed in the legal
community for years. In January 2013, they were the subject of three
different court rule proposals put out for public comment. The Chief
Administrative Judge's Family Court Advisory and Rules Committee, his
former Matrimonial Practice Advisory Committee, and the New York State
Bar Association Committee on Children and the Law each submitted a
request for a court rule regarding access to forensic reports by coun-
sel, parties and self-represented litigants (see
http://www.nycourts.gov/ rules/comments/PDF/ Forensic-Reports-PC-pack-
et.pd1). The proposals differed as to the terms on which self-represent-
ed litigants would have access to the reports.
Before any court rule could be adopted, a bill on the subject was intro- duced in the 2013 legislative session (A. 8342-A). We then suspended consideration of the proposed rules pending possible action on this bill. Two years later, in 2015 a new bill on forensic reports was intro- duced in the Legislature (A. 290). Our Advisory Committee had strong concerns as to both the 2013 and 2015 bills, concerns set out in our 2016 Annual Report to the Chief Administrative Judge. Last year, yet another bill was introduced (A.1533/S.6300). As stated in its 2016 and 2017 Annual Reports, our Advisory Committee believes that there is a real danger that public dissemination of forensic reports or copies thereof on the Internet could be harmful or embarrassing to many; and that this must dictate a need for reasonable restrictions on access to these reports by self-represented litigants. Why these litigants in particular? Attorneys and other forensic experts are subject to profes- sional discipline if reports are released, while parties, including self-represented litigants, face only potential contempt charges - not likely to provide a meaningful remedy for innocent victims, including children, whose personal lives might be exposed. Last year, we developed a new proposal on access to forensic reports in custody cases, hoping to resolve the differences as to treatment of self-represented litigants by providing access to each such report and the complete evaluator's files to the parties -including self-represent- ed litigants, attorneys, independent forensic experts hired to assist the attorneys, and the attorney for the child - on terms respecting the due process rights of both self-represented and represented litigants while providing better protections against unauthorized dissemination than have been provided in past legislative reform efforts. As in last year's effort, access to an evaluator's file would be to the entire file related to the proceeding, including, but not limited to, all underlying notes, test data, raw test materials, underlying materials provided to or relied upon by the court-ordered evaluator and any records, photo- graphs or other evidence. That effort was introduced in the Legislature by Senator Avella as S. 6579, who also introduced S.6300, the Senate version of A.1533. Last spring, memoranda in opposition to A.1533/S.6300 and in support of S. 6579 were sent to legislators by the Family Law Section of the New York State Bar Association, the Women's Bar Associ- ation of the State of New York, the New York City Bar Matrimonial Law Committee and Committee on Children and the Law and the New York Chapter of the Academy of Matrimonial Lawyers. Also supporting S.6579 was the Children's Law Center of Brooklyn. During 2017, we also received suggestions for improving our proposal from the Chief Administrative Judge's Family Court Advisory and Rules Committee and the New York Public Welfare Association, Inc. We have incorporated some of them into this measure. The key provisions of this measure are as follows: ACCESS TO THE FORENSIC REPORT AND FILES This measure differs from A.1533/S.6300 in that its protections against dissemination are more stringent for parties and self-represented liti- gants than they are for attorneys and attorneys for the children, who are officers of the court. While this measure permits attorneys and independent forensic evaluators hired to assist attorneys and self-re- presented litigants to have a copy of a forensic report upon execution of an affidavit assuring the court that there will be no further dissem- ination of the report and that the report and files will be returned at the conclusion of the litigation, the measure does not permit parties or self-represented litigants likewise to have a copy of the report. Instead, it would allow any represented party to read the report in the office of his or her attorney, to discuss the report with the attorney and to make notes about the report. Self-represented parties would be allowed to read the report at the court or other location, and to make notes about the report. Similarly, the measure would permit independent forensic evaluators hired to assist attorneys or self-represented litigants to have access to the complete evaluator's file upon execution of an affidavit assuring the court that there will be no further dissemination of the report and that the report and files will be returned at the conclusion of the litigation. Attorneys are provided access to the file for inspection and photocopy- ing without need for a demand under CPLR 3120. This avoids needless motion practice resulting in delay and expense. The complete file also must be forwarded and made available to self-represented litigants at a court or other location for inspection and note-taking, but not for photocopying. This is a fair compromise. By permitting self-represented litigants to inspect and take notes on what is in the file, and by giving access to the complete evaluator's file to independent forensic evaluators hired by self-represented litigants, this measure would enable the latter to represent themselves at trial, while guarding against dissemination of photocopied materials in the file. This measure continues to subject access to the report and files in all cases to the provisions of CPLR 3101 as to the court's issuance of a protective order. DEFINITION OF COURT-ORDERED EVALUATORS On the recommendation of the Family Court Advisory and Rules Committee, this measure's definition of "court-ordered evaluators" to include only forensic mental health professionals in custody and visitation proceedings, not court-ordered ordered evaluators in statutorily-mandat- ed investigations such as Probation Departments, local Departments of Social Services or the NYC Administration for Children's Services who perform investigations in child protective, permanency, destitute child or other proceedings in which assessments other than clinical evalu- ations are ordered and in which different considerations are relevant. A similar recommendation was made by the New York Public Welfare Associ- ation, Inc. who last year opposed both A.1533/ 5.6300 and S. 6579 on the basis that, if their requirements about turning over forensic reports and notes and contents of files were made applicable to child protective examinations, there could be multiple problems under various state confidentiality laws, which in turn might also impact Federal funding requirements that states follow Federal rules on confidentiality of reports in child protective proceedings. THE REMEDY OF CONTEMPT This measure retains the provision in A.1533/S.6300 that willful failure to comply with a court order conditioning or limiting access to a foren- sic report constitutes contempt of court. And, yet, because contempt for dissemination in violation of a court order years after a case is resolved is not a practical or legally enforceable remedy, this measure provides that the court retains jurisdiction for purposes of an applica- tion for contempt and expands the contempt provisions to apply not just to violations of a court's protective order, but also to statutory violations regarding restrictions on dissemination of the report or the file or of an affidavit with regard thereto. This measure allows the moving party to seek counsel fees to enforce or defend the application for contempt, which helps alleviate the unfair burden and expense of making such a motion. While these provisions do not make the remedy of contempt sufficient in itself to protect against dissemination of private information of innocent parties, and do not protect nonparties, they will be an additional safeguard to the essential protections against dissemination. ADMISSIBILITY OF FORENSIC REPORTS INTO EVIDENCE A. 1533/S.6300 contains a provision that forensic reports and the evalu- ator's file should be subject to objection pursuant to the rules of evidence and subject to cross-examination. In custody and visitation trials and hearings, such a rule will result in substantial delays if the report is not admitted in lieu of direct testimony. Therefore, this measure includes a provision modeled on 22 NYCRR § 202.16(g)(2), a matrimonial rule for calendar control providing that written reports may be used to substitute for direct testimony at trial, providing that the reports shall be submitted by the expert under oath, and that the expert shall be present and available for cross-examination. Without this provision, trial days will be increased. This rule respects the rights of the parties to confront the expert through cross-examination. The right to object to portions of the report is in accordance with a suggestion made by Judge Alan Scheinkman in West McKinney's Forms. At the same time, it avoids wasting the court's time ruling on motions about admissibility, and will help to reduce delays in divorce proceedings in furtherance of the Chief Excellence Initiative. REVIEW OF THE REPORT IN ADVANCE OF A TRIAL OR HEARING Last year, at the request of the Family Law Section of the New York State Bar Association, our legislative proposal included a provision barring a court from reading or reviewing a forensic report until it is received in evidence at a trial or hearing unless the parties consent otherwise by agreement on the record or stipulation before the court, or show good cause therefor. Our proposal also included a proviso that a court may read or review a report at commencement of a trial or hearing (to avoid any need to halt an ongoing trial or hearing), subject to further objection, or before accepting an agreement between the parties in its determination concerning child custody in its role as parens patriae, also subject to further objection. The Family Court Advisory and Rules Committee expressed concerns about these provisions insofar as they might involve different considerations for custody and visitation proceedings in Family Court than for matrimo- nial proceedings involving such proceedings in Supreme Court. Therefore, the instant measure would eliminate these provisions and instead author- ize the Chief Administrative Judge to promulgate rules authorizing a court, in particular cases where a party does not raise a legally-valid objection thereto, to read or review a forensic report at specific times as the rules shall permit. We believe this will protect due process because the rules to be promulgated will authorize the report to be read or reviewed only where a party does not raise a legally valid objection. A legally valid objection might be raised where the forensic report is filled with unscientific and/or unsubstantiated or non-professionally reliable hearsay allegations. It is conceivable that courts could sustain an objection after having reviewed the report, but take into account inadmissibility of evidence just as courts take into account admissibility of evidence they see every day in the courtroom as they must do under New York law (see Johnson v. Lutz, 253 N.Y. 124, (1930)). The rules to be promulgated must balance the equities of the need for redaction of the inadmissible portion with the need to allow the court to have information it requires (e.g. information as to domestic violence or abuse, which is statutorily-mandated to be factored into a custody decision). Also, forensic reports sometimes enable courts to encourage settlements because the court is aware of detrimental informa- tion against the parties. SELF-REPRESENTED LITIGANTS This measure will strike a fair balance between due process concerns, as expressed in the First Department decision in Sonbuchner v. Sonbuchner, 96 A.D.3d 566 (App. Div., 2012), and rights of innocent parties to not have the most intimate details of their lives disseminated over the Internet and by other improper means. Self-represented litigants often are individuals who could afford counsel, or who could have assigned counsel appointed for them pursuant to Judiciary Law § 35(8) or Family Court Act § 262 in a custody and visitation proceeding, but who choose to represent themselves. If self-represented litigants refuse assigned counsel, or discharge their counsel in order to represent themselves, they in effect assume the risk that they will not be given a copy of a forensic report and the file, but will only be allowed to read it and take notes, and could be so allocuted. For those few self-represented litigants who wish to be represented by counsel but do not qualify for assigned counsel, there are help centers and law libraries at court- houses around the State where they may read and take notes on forensic reports and research issues that arise regarding custody issues. In addition, many bar associations throughout the state provide low cost legal consultations, and many legal service organizations provide low cost and/or no cost legal services for qualifying low income individuals who qualify. There are other circumstances where attorneys and self-represented liti- gants are treated differently in the judicial process and these instances do not constitute due process violations. These differences in treatment range from how litigants enter a courthouse, to the screening that they must undergo, to the requirements as to attorneys being escrow agents while self-represented litigants are not. In certain instances, judicial discretion allows self-represented litigants greater leeway than represented litigants, such as the ability to testify in the narra- tive or to introduce an exhibit without formality. Such reasonable advantages afforded to self-represented litigants along with reasonable restrictions imposed upon them are, to some extent, unavoidable conse- quences of the fact that they are not trained and licensed members of the bar. SUMMARY Some argue that forensic reports should be subject to higher standards of scientific reliability and that those who prepare such reports should be subject to more rigorous examination as to their qualifications. We share these concerns and recommend that counsel and the parties be encouraged to utilize the Mental Health Professionals Certification Committee established in the First and Second Departments to review qualifications and report complaints as to forensic evaluators. When prepared competently and utilized by the court, forensic reports are a valuable and necessary tool for the judges to access important informa- tion prepared by experts in the field, which can lead to better custody and visitation decisions. It is important that uniform standards be established on a statewide basis to determine access to such reports and files by all who need them during custody and visitation litigation. It also is important to set rules as to evidentiary admissibility and report access, which allow the court to have the information it needs while protecting the rights of parties to object to the qualifications of the expert or to inadmissible hearsay in the report, and to cross examine the expert. We believe this measure would realize these goals in a fair manner, protecting due process with adequate safeguards against privacy violations, while at the same time promoting the effi- ciency of the custody and visitation litigation process by eliminating unnecessary motion practice and, where practicable, trials related to direct testimony contributing to delays in custody determinations. The changes in this measure from its earlier iterations, made in response to suggestions from the Family Court Advisory and Rules Commit- tee and others, make the measure more workable in case types other than matrimonial, and foreclose conflicts with confidentiality laws and possible loss of Federal funding in connection with State child protec- tive, permanency and other proceedings. This measure would take effect 90 days after it shall have become a law; provided, however, that effective immediately the Chief Administrative Judge, with the approval of the Administrative Board of the Courts, could promulgate any rules necessary to implement the provisions of this act. 2017-18 LEGISLATIVE HISTORY: OCA 2017-38 Senate 6579 (Sen. Avella) (referred to Children & Families)
2017-S6579A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
6579--A
2017-2018 Regular Sessions
I N S E N A T E
June 5, 2017
___________
Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Rules -- recommitted to the Committee on
Children and Families in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the domestic relations law and the family court act, in
relation to child custody forensic reports
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 70 of the domestic relations law is amended by
adding a new subdivision (c) to read as follows:
(C) WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION
OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL IN A
CUSTODY OR VISITATION PROCEEDING, OTHER THAN BY A PROBATION SERVICE, A
CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE,
APPOINTED BY THE COURT TO ASSIST WITH THE DETERMINATION OF CHILD CUSTODY
OR VISITATION PURSUANT TO THIS ARTICLE, HEREINAFTER REFERRED TO FOR
PURPOSES OF THIS SUBDIVISION AS "COURT ORDERED EVALUATORS", THEN FOR
PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTIGATIONS:
(1) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF
THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT
OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE
PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA-
BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR,
TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION,
SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND
THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY
SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT,
PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT
GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09905-04-8 S. 6579--A 2 PARAGRAPH TWO OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMITATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISA- BILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENTED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARAGRAPH TWO OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRESENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALUATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (2) THE COURT ORDER APPOINTING SAID EVALUATORS SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE, INCLUDING, WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (3) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT, OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW, AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- S. 6579--A 3 TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW, AS THE CASE MAY BE; AND (4) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (5) THE CHIEF ADMINISTRATOR OF THE COURTS MAY ADOPT RULES AUTHORIZING A COURT, IN PARTICULAR CASES WHERE A PARTY DOES NOT RAISE A LEGALLY-VAL- ID OBJECTION THERETO, TO READ OR REVIEW A FORENSIC REPORT AT ONE OR MORE OF THE FOLLOWING TIMES AS THE RULES SHALL PERMIT: (I) BEFORE THE REPORT IS RECEIVED IN EVIDENCE AT A TRIAL OR AT A HEAR- ING; (II) AT THE COMMENCEMENT OF A TRIAL OR A HEARING; (III) BEFORE ACCEPTING AN AGREEMENT BETWEEN THE PARTIES TO ITS DETER- MINATION CONCERNING CHILD CUSTODY OR VISITATION; OR (IV) AT ANY OTHER TIME IF: (A) AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPU- LATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT; OR (B) PERMITTED BY THE COURT UPON APPLICATION THERETO SHOWING GOOD CAUSE THEREFOR; AND (6) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new paragraph (a-3) to read as follows: (A-3) COURT ORDERED FORENSIC EVALUATIONS IN PROCEEDINGS INVOLVING CHILD CUSTODY AND VISITATION. WHERE A COURT ORDER IS ISSUED FOR AN EVAL- UATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL IN A CUSTODY OR VISITATION PROCEEDING, OTHER THAN BY A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, APPOINTED BY THE COURT TO ASSIST WITH THE DETER- MINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS PARAGRAPH, HEREINAFTER REFERRED TO FOR PURPOSES OF THIS PARAGRAPH AS "COURT ORDERED EVALUATORS", THEN FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALU- ATIONS AND INVESTIGATIONS: (1) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS PARAGRAPH, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT, PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS S. 6579--A 4 PARAGRAPH WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING THE TRIAL. ANY CONDITIONS OR LIMITATIONS IMPOSED BY THE COURT PURSUANT TO THIS PARAGRAPH RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISA- BILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW AND REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENTED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRESENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALUATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (2) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE, INCLUDING, WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (3) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS PARAGRAPH REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS PARAGRAPH REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS PARAGRAPH REGARD- S. 6579--A 5 ING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICI- ARY LAW AS THE CASE MAY BE; AND (4) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (5) THE CHIEF ADMINISTRATOR OF THE COURTS MAY ADOPT RULES AUTHORIZING A COURT, IN PARTICULAR CASES WHERE A PARTY DOES NOT RAISE A LEGALLY-VAL- ID OBJECTION THERETO, TO READ OR REVIEW A FORENSIC REPORT AT ONE OR MORE OF THE FOLLOWING TIMES AS THE RULES SHALL PERMIT: (I) BEFORE THE REPORT IS RECEIVED IN EVIDENCE AT A TRIAL OR AT A HEAR- ING; (II) AT THE COMMENCEMENT OF A TRIAL OR A HEARING; (III) BEFORE ACCEPTING AN AGREEMENT BETWEEN THE PARTIES TO ITS DETER- MINATION CONCERNING CHILD CUSTODY OR VISITATION; OR (IV) AT ANY OTHER TIME IF: (A) AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPU- LATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT; OR (B) PERMITTED BY THE COURT UPON APPLICATION THERETO SHOWING GOOD CAUSE THEREFOR; AND (6) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 3. Subdivision (c) of section 251 of the family court act is relet- tered subdivision (d) and a new subdivision (c) is added to read as follows: (C) NOTWITHSTANDING THE PROVISIONS OF THIS SECTION TO THE CONTRARY, WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL IN A CUSTODY OR VISITATION PROCEEDING, OTHER THAN BY A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, APPOINTED BY THE COURT TO ASSIST WITH THE DETERMINATION OF CHILD CUSTODY OR VISI- TATION PURSUANT TO ARTICLE FOUR OR SIX OF THIS ACT, HEREINAFTER REFERRED TO FOR PURPOSES OF THIS SUBDIVISION AS "COURT ORDERED EVALUATORS", THEN FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTI- GATIONS: (1) NOTWITHSTANDING SECTION ONE HUNDRED SIXTY-FIVE OF THIS ACT AND SECTION FOUR HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, THE PROVISIONS AND LIMITATIONS OF SECTIONS THREE THOUSAND ONE HUNDRED ONE AND THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY; AND (2) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT, S. 6579--A 6 PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER PARAGRAPH THREE OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE, EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMI- TATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISABILITY, EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENT- ED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARA- GRAPH THREE OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRE- SENTED LITIGANT, PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALU- ATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (3) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE, INCLUDING, WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (4) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY S. 6579--A 7 INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW AS THE CASE MAY BE; AND (5) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (6) THE CHIEF ADMINISTRATOR OF THE COURTS MAY ADOPT RULES AUTHORIZING A COURT, IN PARTICULAR CASES WHERE A PARTY DOES NOT RAISE A LEGALLY-VAL- ID OBJECTION THERETO, TO READ OR REVIEW A FORENSIC REPORT AT ONE OR MORE OF THE FOLLOWING TIMES AS THE RULES SHALL PERMIT: (I) BEFORE THE REPORT IS RECEIVED IN EVIDENCE AT A TRIAL OR AT A HEAR- ING; (II) AT THE COMMENCEMENT OF A TRIAL OR A HEARING; (III) BEFORE ACCEPTING AN AGREEMENT BETWEEN THE PARTIES TO ITS DETER- MINATION CONCERNING CHILD CUSTODY OR VISITATION; OR (IV) AT ANY OTHER TIME IF: (A) AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPU- LATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT; OR (B) PERMITTED BY THE COURT UPON APPLICATION THERETO SHOWING GOOD CAUSE THEREFOR; AND (7) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 4. Section 651 of the family court act is amended by adding a new subdivision (g) to read as follows: (G) COURT ORDERED FORENSIC EVALUATIONS IN PROCEEDINGS INVOLVING CHILD CUSTODY AND VISITATION. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION TO THE CONTRARY, WHERE A COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTIGATION OF THE PARTIES OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL IN A CUSTODY OR VISITATION PROCEEDING, OTHER THAN BY A PROBATION SERVICE, A CHILD PROTECTIVE SERVICE OR ANY OTHER PERSON AUTHORIZED BY STATUTE, APPOINTED BY THE COURT TO ASSIST WITH THE DETER- MINATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS ARTICLE OR ARTICLE FOUR OF THIS ACT, HEREINAFTER REFERRED TO FOR PURPOSES OF THIS SUBDIVISION AS "COURT ORDERED EVALUATORS", THEN FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS AND INVESTIGATIONS; (1) NOTWITHSTANDING SECTION ONE HUNDRED SIXTY-FIVE OF THIS ACT AND SECTION FOUR HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, THE PROVISIONS AND LIMITATIONS OF SECTIONS THREE THOUSAND ONE HUNDRED ONE AND THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY; AND (2) THE COURT WILL DETERMINE WHICH PARTY IS RESPONSIBLE FOR PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR, OR IN WHAT PROPORTIONS PAYMENT OF THE FEE OF THE COURT ORDERED EVALUATOR WILL BE SHARED BETWEEN THE PARTIES, OR OTHERWISE PAID ON BEHALF OF A PARTY OR PARTIES, IF APPLICA- BLE. ANY REPORT OR EVALUATION PREPARED BY THE COURT ORDERED EVALUATOR, S. 6579--A 8 TO BE KNOWN AS A "FORENSIC REPORT" FOR THE PURPOSES OF THIS SUBDIVISION, SHALL BE CONFIDENTIAL AND KEPT UNDER SEAL EXCEPT THAT ALL ATTORNEYS AND THE ATTORNEY FOR THE CHILD SHALL HAVE A RIGHT TO RECEIVE A COPY OF ANY SUCH FORENSIC REPORT UPON RECEIPT OF SUCH A REPORT BY THE COURT; PROVIDED THAT THEY EXECUTE AN AFFIDAVIT ACKNOWLEDGING THAT THEY WILL NOT GIVE A COPY OF THE REPORT OR THE EVALUATOR'S FILE AS PROVIDED FOR UNDER PARAGRAPH THREE OF THIS SUBDIVISION TO A PARTY OR FURTHER DISSEMINATE THE REPORT OR SAID FILE EXCEPT AS OTHERWISE EXPRESSLY PERMITTED UNDER THIS SUBDIVISION WITHOUT THE CONSENT OF THE COURT, AND WILL RETURN THE REPORT AND FILE TO THE COURT UPON CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES. PROVIDED, HOWEVER, IN NO EVENT SHALL A PARTY OR HIS OR HER COUNSEL BE PREVENTED FROM ACCESS TO OR REVIEW OF A FORENSIC REPORT IN ADVANCE OF AND DURING TRIAL. ANY CONDITIONS OR LIMI- TATIONS IMPOSED BY THE COURT PURSUANT TO THIS SUBDIVISION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR LANGUAGE ACCESS AND DISABILITY; EXCEPT THAT NO PARTY TO THE ACTION SHALL BE PERMITTED TO HAVE A COPY OF THE REPORT OR TO REPRODUCE OR DISSEMINATE ALL OR ANY PORTION THEREOF. IF A PARTY IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID REPORT AT A COURT OR OTHER LOCATION, AND TO MAKE NOTES ABOUT THE REPORT; AND IF A PARTY IS REPRESENTED, THE PARTY SHALL HAVE A RIGHT TO READ THE FORENSIC REPORT IN HIS OR HER ATTORNEY'S OFFICE, TO DISCUSS THE REPORT WITH THE ATTORNEY REPRESENTING HIM OR HER IN THE ACTION, AND TO MAKE NOTES ABOUT THE REPORT. UPON APPLICATION BY COUNSEL OR A SELF-REPRESENT- ED LITIGANT, THE COURT SHALL PERMIT A COPY OF THE FORENSIC REPORT AND A COPY OF THE COURT ORDERED EVALUATOR'S FILES AS PROVIDED FOR UNDER PARA- GRAPH THREE OF THIS SUBDIVISION TO BE PROVIDED TO ANY INDEPENDENT LICENSED FORENSIC EVALUATOR RETAINED TO ASSIST COUNSEL OR A SELF-REPRE- SENTED LITIGANT; PROVIDED THAT THE INDEPENDENT LICENSED FORENSIC EVALU- ATOR EXECUTES AN AFFIDAVIT ACKNOWLEDGING THAT HE OR SHE MAY NOT FURTHER DISSEMINATE THE REPORT OR THE FILES ABSENT COURT PERMISSION, AND WILL RETURN THE REPORT AND THE FILES TO THE COURT AT THE CONCLUSION OF THE LITIGATION, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND (3) THE COURT ORDER APPOINTING SAID EVALUATOR SHALL PROVIDE TO A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMITED TO, ALL UNDERLYING 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 FOR INSPECTION AND PHOTOCOPYING, SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; EXCEPT IF AN INDIVIDUAL IS SELF-REPRESENTED, THE COURT SHALL MAKE REASONABLE ACCOMMODATIONS FOR THE SELF-REPRESENTED PARTY TO REVIEW SAID ENTIRE FILE, INCLUDING, WITHOUT LIMITATION, EVERY- THING THAT A PARTY'S ATTORNEY OR THE ATTORNEY FOR THE CHILD IS ENTITLED TO REVIEW AS DESCRIBED ABOVE, AT A COURT OR OTHER LOCATION AND FORWARD THOSE ITEMS TO THAT LOCATION FOR INSPECTION AND NOTE TAKING, BUT NOT FOR PHOTOCOPYING OR PHOTOGRAPHING OR SCANNING; AND (4) A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER CONDITIONING OR LIMITING ACCESS TO A FORENSIC REPORT OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO, SHALL BE CONTEMPT OF COURT AND MAY BE PUNISHABLE AS SUCH AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW AS THE CASE MAY BE. THE COURT SHALL NOTIFY THE S. 6579--A 9 PARTIES AND COUNSEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT ORDER OR THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEM- INATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDA- VIT EXECUTED WITH RESPECT THERETO SHALL BE CONTEMPT OF COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR IMPRISONMENT OR BOTH; AND THE COURT SHALL RETAIN JURISDICTION FOR THE PURPOSES OF DETERMINING ANY APPLICA- TION FOR CONTEMPT BASED ON A WILLFUL FAILURE TO COMPLY WITH A COURT ORDER OR A WILLFUL VIOLATION OF THE PROVISIONS OF THIS SUBDIVISION REGARDING DISSEMINATION OF THE FORENSIC REPORT OR THE EVALUATOR'S FILE OR OF AN AFFIDAVIT EXECUTED WITH RESPECT THERETO; AND A PARTY MAY SEEK COUNSEL FEES TO ENFORCE OR DEFEND SAID APPLICATION FOR CONTEMPT PURSUANT TO SECTION SEVEN HUNDRED FIFTY OR SEVEN HUNDRED FIFTY-THREE OF THE JUDI- CIARY LAW AS THE CASE MAY BE; AND (5) IN THE DISCRETION OF THE COURT, OR UPON STIPULATION OF THE PARTIES, WRITTEN REPORTS MAY BE USED TO SUBSTITUTE FOR DIRECT TESTIMONY AT THE TRIAL, BUT THE REPORTS SHALL BE SUBMITTED BY THE EXPERT UNDER OATH, AND THE EXPERT SHALL BE PRESENT AND AVAILABLE FOR CROSS-EXAMINA- TION. THE COURT SHALL DETERMINE WHO IS RESPONSIBLE FOR THE PAYMENT OF ANY FEES FOR SAID APPEARANCE OR APPEARANCES BY THE EXPERT; AND (6) THE CHIEF ADMINISTRATOR OF THE COURTS MAY ADOPT RULES AUTHORIZING A COURT, IN PARTICULAR CASES WHERE A PARTY DOES NOT RAISE A LEGALLY-VAL- ID OBJECTION THERETO, TO READ OR REVIEW A FORENSIC REPORT AT ONE OR MORE OF THE FOLLOWING TIMES AS THE RULES SHALL PERMIT: (I) BEFORE THE REPORT IS RECEIVED IN EVIDENCE AT A TRIAL OR AT A HEAR- ING; (II) AT THE COMMENCEMENT OF A TRIAL OR A HEARING; (III) BEFORE ACCEPTING AN AGREEMENT BETWEEN THE PARTIES TO ITS DETER- MINATION CONCERNING CHILD CUSTODY OR VISITATION; OR (IV) AT ANY OTHER TIME IF: (A) AGREED TO BY THE PARTIES AND THEIR COUNSEL IN A WRITTEN STIPU- LATION SUBMITTED TO THE COURT OR IN AN AGREEMENT ON THE RECORD IN OPEN COURT; OR (B) PERMITTED BY THE COURT UPON APPLICATION THERETO SHOWING GOOD CAUSE THEREFOR; AND (7) NO FORENSIC REPORT OR ANY PORTION OR PORTIONS THEREOF SHALL BE ATTACHED TO, OR QUOTED IN, ANY MOTIONS, PLEADINGS OR OTHER DOCUMENTS BY COUNSEL OR A PARTY. § 5. This act shall take effect on the ninetieth day after it shall have become a law; provided, however, that effective immediately the chief administrator of the courts, with the approval of the administra- tive board of the courts, is authorized and directed to promulgate any rules necessary to implement the provisions of this act on or before such effective date.
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