NY State Senate Bill 2019-S4686

Senate Bill S4686

2019-2020 Legislative Session

Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings

download bill text pdf

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

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to children and families
Jun 20, 2019	committed to rules
May 20, 2019	advanced to third reading
May 15, 2019	2nd report cal.
May 14, 2019	1st report cal.765
Mar 20, 2019	referred to children and families

Votes

- May 14, 2019 - Children And Families Committee Vote
  S4686
  
  3
  
  Aye
  
  1
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 14, 2019
      
      aye (3)
      
      Kaplan
      
      Montgomery
      
      Salazar
      
      nay (1)
      
      Tedisco
      
      aye wr (3)
      
      Addabbo Jr.
      
      Persaud
      
      Serino

co-Sponsors

2019-S4686 (ACTIVE) - Details

See Assembly Version of this Bill:: A5621
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
Versions Introduced in Other Legislative Sessions:: 2013-2014: A8342
2015-2016: S7089, A290
2017-2018: S6300, A1533
2021-2022: S753, A8110
2023-2024: S4434, A3771

2019-S4686 (ACTIVE) - Summary

Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings.

2019-S4686 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S4686

SPONSOR: BIAGGI
 
TITLE OF BILL:  An act to amend the domestic relations law and the
family court act, in relation to child custody forensic reports

 
PURPOSE OF BILL:

This legislation provides for uniform access to court ordered forensic
mental health evaluation reports and underlying data by litigants, their
counsels and the counsel for the attorney for the child in child custody
and visitation cases.

 
SUMMARY OF PROVISIONS OF BILL:

Sections 1 and 2. Amend sections 70 and subdivision 1 of section 240 of
the domestic relations law respectively, to provide that where a court
order is issued for an evaluation of the parties or a child by a foren-
sic mental health professional or any other person appointed by the
court to assist with the determination of child custody or visitation,
any report prepared by the forensic evaluator shall be confidential and

under seal except that all parties, their attorneys and the attorney for
the child shall have a right to a copy of the forensic report as well as
a copy of the forensic evaluator's file along with underlying records
and data, subject to protective orders under section 3103 of the civil
practice law and rules.

In addition, the sections provide that, upon application to the court,
any person retained to assist counsel or any party shall be provided a
copy of the forensic report and the court ordered evaluator's file,
subject to protective orders under section 3103 of the civil practice
law and rules.

The sections also provide that, the court is required to notice the
parties and counsel on the record that a willful failure to comply with
a court order conditioning or limiting disclosure shall be contempt of
court which may include punishment of a fine or imprisonment or both.

Furthermore, the sections provide that, the admissibility into evidence
of the forensic report or the forensic evaluator's file shall be subject
to the rules of evidence and subject to the right of cross-examination.

Sections 3 and 4. Amend subdivisions (c) and (d) of section 251 of the
family court act and section 651 of the family court act respectively,
to provide that notwithstanding section 165 of the family court act and
section 408 of the civil practice law and rules, sections 3101 and 3103
of the civil practice law and rules shall apply to court ordered foren-
sic evaluations.

In addition, the sections provide that, where a court order is issued
for an evaluation of the parties or a child by a forensic mental health
professional or any other person appointed by the court to assist with
the determination of child custody or visitation, any report prepared by
the forensic evaluator shall be confidential and under seal except that
all parties, their attorneys and the attorney for the child shall have a
right to a copy of the forensic report as well as a copy of the forensic
evaluator's file along with underlying records and data, subject to
protective orders under section 3103 of the civil practice law and
rules.
Also, upon application to the court, any person retained to assist coun-
sel or any party shall be provided a copy of the forensic report and the
court ordered evaluator's file, subject to protective orders under
section 3103 of the civil practice law and rules.

The sections also provide that, the court is required to notice the
parties and counsel on the record that a failure to comply with a court
order conditioning or limiting disclosure shall be contempt of court
which may include punishment of a fine or imprisonment or both.

Furthermore, under the amendments the admissibility into evidence of the
forensic report or the forensic evaluator's file shall be subject to the
rules of evidence and subject to the right of cross-examination.

Section 5. Effective date.

 
JUSTIFICATION:

Presently in New York State, courts can direct mental health evaluations
of parties and their child/ren by a court appointed forensic evaluator
in custody and visitation cases to aid the court in making a decision.
These evaluations are often referred to as forensic evaluations and
among other things contain information based on interviews with the
parents, relatives, the subject child/ren, and any other people that may
have bearing on the mental health of the parties, their parenting and
the parties' relationship with each other and their child/ren. The
forensic reports produced by the forensic evaluator are sent directly to
the courts.

Under current case law and practice, access to forensic reports and
pre-trial disclosure of forensic evaluator files, including underlying
data in child custody and visitation cases, is non-uniform and in many
instances curtailed, resulting in inconsistent decisions regarding
access to disclosure provisions in the civil practice law and rules. The
limitations on access to the reports raise serious due process concerns
including the inability of parents to adequately and effectively chal-
lenge the quality and trustworthiness of forensic reports that play a
critical and often decisive role in shaping a court's decision about
parental access to their children. In addition, the forensic reports are
frequently not subjected to the rigor of evidentiary laws and proce-
dures.

Forensic reports are lengthy, complex and contain facts, scientific
and/or other data and conclusions of the evaluator on the basis of the
data. Thorough analysis of the reports including any defects therein
requires a lot of time and even expert resources. These reports general-
ly contain substantial hearsay and hearsay-within-hearsay. The reports
also contain subjective information and may contain biased or inaccurate
information. Since the parents are most familiar with the facts of their
lives, they are best positioned to identify factual errors in the foren-
sic report.  The help of professionals with specific expertise in the
areas covered by the forensic report is also important to properly eval-
uate the report and its conclusions. In order to challenge the accuracy
of the report on the facts, data and on the conclusions, and to prepare
for an effective cross-examination of the forensic evaluator, the
parties and their counsel must have complete access to the report with
the ability to share the report with professionals retained to assist
them, including those with expertise to help analyze the report.
Parents are, however, frequently prevented from receiving copies of a
forensic report in child custody and visitation cases and where they are
otherwise given access, such as permission to view the report at the
court house or at counsel's office, where parties have counsel, the
conditions of access may be so circumscribed that they inhibit the abil-
ity of parents and/or their counsel to prepare for trial. In addition,
some of the current procedures employed for access to the reports hamper
the ability of a parent to retain professionals with the expertise to
assist with analyzing the contents of the forensic report. Without the
ability to thoroughly examine the report and challenge its contents, a
litigant's right to a fair trial is severely hampered.

A parent's interest in the care, custody and management of his or her
child/ren is one of the oldest and most fundamental liberty interests
recognized by law. This right has also been recognized by the United
States Supreme Court in its decision in Troxel v. Granville, 530 U.S.
57, 120 S. Ct. 2054 (2000). In light of the interest at stake, it is
important to afford parents and litigants in child custody and visita-
tion cases due process protections and evidentiary safeguards.

This proposal gives the litigants, their counsel, if any, and the attor-
ney for the child in child custody and visitation cases the right to
obtain a copy of the forensic report and the forensic evaluator's file
including the underlying data. At the same time, this proposal enables a
party to obtain a copy of the forensic report and the evaluator's file
to give to professionals retained to help with the case, including e.g.
an expert to rebut the contents of a forensic report.

However, under the proposal, at each step, the court has the ability to
make a protective order limiting or conditioning access to the forensic
report or the evaluator's file. In addition, the court has the authority
to hold violators of their court orders directing such limitations or
conditions in contempt of court. The court is also required to notice
the parties and counsel that a violation of a court order conditioning
or limiting disclosure shall be contempt of court which may include
punishment of a fine or imprisonment or both.

The proposal also provides that the forensic report must be subject to
cross-examination and the rules of evidence. This will help ensure that
the contents of the forensic report can be fully challenged and are
subject to the rigor required under the rules and laws of evidence.

This proposal balances important due process rights against any counter-
vailing concerns relating to a harmful impact on the child/ren subject
to the litigation that may result from unfettered access to forensic
reports and underlying data in child custody and visitation cases.

 
LEGISLATIVE HISTORY:

2018: A.1533/S.6300 - A. Cal/S. Child & Fam
2017: A.1533/S.6300 - A. Cal/S. Rules
2016: A.290/S.7089 - PA/S. Rules
2015: A.290 - A. Cal.
2014: A.8342-A - A. Cal.
2013: A.8342 - A. Judi

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law, with the chief administrator of the courts authorized and
directed to promulgate any rules necessary to implement the provisions
of the act on or before the effective date.

2019-S4686 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4686
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 20, 2019
                                ___________
 
 Introduced  by  Sen.  BIAGGI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Children and Families
 
 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)  COURT ORDERED FORENSIC EVALUATIONS IN PROCEEDINGS INVOLVING CHILD
 CUSTODY AND VISITATION. 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 VISI-
 TATION PURSUANT TO THIS ARTICLE, FOR  PURPOSES  OF  SUCH  COURT  ORDERED
 FORENSIC EVALUATIONS AND INVESTIGATIONS:
   (1)  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  PARTIES,
 THEIR  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, 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 SUBDIVI-
 SION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR
 LANGUAGE ACCESS AND DISABILITY. UPON APPLICATION BY COUNSEL OR  A  PARTY
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00926-01-9

 S. 4686                             2
 
 THIS SUBDIVISION TO BE PROVIDED TO ANY PERSON RETAINED TO ASSIST COUNSEL
 OR  ANY  PARTY,  SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE
 HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (2)  PURSUANT  TO  A DEMAND MADE UNDER RULE THREE THOUSAND ONE HUNDRED
 TWENTY OF THE CIVIL PRACTICE LAW AND RULES, THE COURT ORDERED  EVALUATOR
 SHALL  PROVIDE  TO  A PARTY, HIS OR HER ATTORNEY OR THE ATTORNEY FOR THE
 CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMIT-
 ED 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 PHOTOCOPY-
 ING, SUBJECT TO THE PROVISIONS OF SECTION  THREE  THOUSAND  ONE  HUNDRED
 THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (3)  A  WILLFUL  FAILURE  TO COMPLY WITH A COURT ORDER CONDITIONING OR
 LIMITING ACCESS TO A FORENSIC REPORT SHALL BE CONTEMPT OF COURT AND  MAY
 BE  PUNISHABLE  AS  SUCH  AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY-
 THREE OF THE JUDICIARY LAW. THE COURT SHALL NOTIFY THE PARTIES AND COUN-
 SEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT  ORDER
 SHALL  BE  CONTEMPT  OF  COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR
 IMPRISONMENT OR BOTH; AND
   (4) ADMISSIBILITY INTO EVIDENCE OF THE FORENSIC REPORT  OR  THE  COURT
 ORDERED EVALUATOR'S FILE SHALL BE SUBJECT TO OBJECTION OF ANY PARTY, HIS
 OR  HER  ATTORNEY OR THE ATTORNEY FOR THE CHILD PURSUANT TO THE RULES OF
 EVIDENCE AND SUBJECT TO THE RIGHT OF CROSS-EXAMINATION.
   § 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, 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  VISI-
 TATION  PURSUANT TO THIS SUBDIVISION, FOR PURPOSES OF SUCH COURT ORDERED
 FORENSIC EVALUATIONS AND INVESTIGATIONS:
   (1) 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  PARTIES,
 THEIR  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, 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 SUBDIVI-
 SION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR
 LANGUAGE ACCESS AND DISABILITY. UPON APPLICATION BY COUNSEL OR  A  PARTY
 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 PERSON RETAINED TO ASSIST COUN-
 SEL OR ANY PARTY, SUBJECT TO THE PROVISIONS OF  SECTION  THREE  THOUSAND
 ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (2)  PURSUANT  TO  A DEMAND MADE UNDER RULE THREE THOUSAND ONE HUNDRED
 TWENTY OF THE CIVIL PRACTICE LAW AND RULES, THE COURT ORDERED  EVALUATOR
 SHALL  PROVIDE  TO  A PARTY, HIS OR HER ATTORNEY OR THE ATTORNEY FOR THE
 CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMIT-
 ED TO, ALL UNDERLYING NOTES, TEST DATA, RAW TEST  MATERIALS,  UNDERLYING

 S. 4686                             3
 
 MATERIALS  PROVIDED TO OR RELIED UPON BY THE COURT ORDERED EVALUATOR AND
 ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-
 ING, SUBJECT TO THE PROVISIONS OF SECTION  THREE  THOUSAND  ONE  HUNDRED
 THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (3)  A  WILLFUL  FAILURE  TO COMPLY WITH A COURT ORDER CONDITIONING OR
 LIMITING ACCESS TO A FORENSIC REPORT SHALL BE CONTEMPT OF COURT AND  MAY
 BE  PUNISHABLE  AS  SUCH  AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY-
 THREE OF THE JUDICIARY LAW. THE COURT SHALL NOTIFY THE PARTIES AND COUN-
 SEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT  ORDER
 SHALL  BE  CONTEMPT  OF  COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR
 IMPRISONMENT OR BOTH; AND
   (4) ADMISSIBILITY INTO EVIDENCE OF THE FORENSIC REPORT  OR  THE  COURT
 ORDERED EVALUATOR'S FILE SHALL BE SUBJECT TO OBJECTION OF ANY PARTY, HIS
 OR  HER  ATTORNEY OR THE ATTORNEY FOR THE CHILD PURSUANT TO THE RULES OF
 EVIDENCE AND SUBJECT TO THE RIGHT OF CROSS-EXAMINATION.
   § 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) COURT ORDERED FORENSIC EVALUATIONS IN CHILD CUSTODY AND VISITATION
 PROCEEDINGS. NOTWITHSTANDING THE  PROVISIONS  OF  THIS  SECTION  TO  THE
 CONTRARY,  WHERE  A  COURT ORDER IS ISSUED FOR AN EVALUATION OR INVESTI-
 GATION OF THE PARTIES OR A CHILD BY A  FORENSIC  MENTAL  HEALTH  PROFES-
 SIONAL,  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 ARTICLE FOUR OR SIX OF THIS ACT, 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)  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  PARTIES,
 THEIR  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, 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 SUBDIVI-
 SION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR
 LANGUAGE ACCESS AND DISABILITY. UPON APPLICATION BY COUNSEL OR  A  PARTY
 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 THREE OF
 THIS SUBDIVISION TO BE PROVIDED TO ANY PERSON RETAINED TO ASSIST COUNSEL
 OR ANY PARTY, SUBJECT TO THE PROVISIONS OF SECTION  THREE  THOUSAND  ONE
 HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (3)  PURSUANT  TO  A DEMAND MADE UNDER RULE THREE THOUSAND ONE HUNDRED
 TWENTY OF THE CIVIL PRACTICE LAW AND RULES, THE COURT ORDERED  EVALUATOR
 SHALL  PROVIDE  TO  A PARTY, HIS OR HER ATTORNEY OR THE ATTORNEY FOR THE
 CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMIT-
 ED TO, ALL UNDERLYING NOTES, TEST DATA, RAW TEST  MATERIALS,  UNDERLYING
 MATERIALS  PROVIDED TO OR RELIED UPON BY THE COURT ORDERED EVALUATOR AND

 S. 4686                             4
 
 ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-
 ING, SUBJECT TO THE PROVISIONS OF SECTION  THREE  THOUSAND  ONE  HUNDRED
 THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (4)  A  WILLFUL  FAILURE  TO COMPLY WITH A COURT ORDER CONDITIONING OR
 LIMITING ACCESS TO A FORENSIC REPORT SHALL BE CONTEMPT OF COURT AND  MAY
 BE  PUNISHABLE  AS  SUCH  AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY-
 THREE OF THE JUDICIARY LAW. THE COURT SHALL NOTIFY THE PARTIES AND COUN-
 SEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT  ORDER
 SHALL  BE  CONTEMPT  OF  COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR
 IMPRISONMENT OR BOTH; AND
   (5) ADMISSIBILITY INTO EVIDENCE OF THE FORENSIC REPORT  OR  THE  COURT
 ORDERED EVALUATOR'S FILE SHALL BE SUBJECT TO OBJECTION OF ANY PARTY, HIS
 OR  HER  ATTORNEY OR THE ATTORNEY FOR THE CHILD PURSUANT TO THE RULES OF
 EVIDENCE AND SUBJECT TO THE RIGHT OF CROSS-EXAMINATION.
   § 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 CHILD CUSTODY AND VISITATION
 PROCEEDINGS.    NOTWITHSTANDING  THE  PROVISIONS  OF THIS SECTION TO THE
 CONTRARY, WHERE A COURT ORDER IS ISSUED FOR AN  EVALUATION  OR  INVESTI-
 GATION  OF  THE  PARTIES  OR A CHILD BY A FORENSIC MENTAL HEALTH PROFES-
 SIONAL, 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 OR ARTICLE FOUR OF THIS ACT,  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) 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 PARTIES,
 THEIR 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,  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 SUBDIVI-
 SION RELATING TO DISCLOSURE OF THE FORENSIC REPORT SHALL ACCOMMODATE FOR
 LANGUAGE  ACCESS  AND DISABILITY. UPON APPLICATION BY COUNSEL OR A PARTY
 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 THREE OF
 THIS SUBDIVISION TO BE PROVIDED TO ANY PERSON RETAINED TO ASSIST COUNSEL
 OR  ANY  PARTY,  SUBJECT TO THE PROVISIONS OF SECTION THREE THOUSAND ONE
 HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
   (3) PURSUANT TO A DEMAND MADE UNDER RULE THREE  THOUSAND  ONE  HUNDRED
 TWENTY  OF THE CIVIL PRACTICE LAW AND RULES, THE COURT ORDERED EVALUATOR
 SHALL PROVIDE TO A PARTY, HIS OR HER ATTORNEY OR THE  ATTORNEY  FOR  THE
 CHILD THE ENTIRE FILE RELATED TO THE PROCEEDING INCLUDING BUT NOT LIMIT-
 ED  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 PHOTOCOPY-

 S. 4686                             5

 ING,  SUBJECT  TO  SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL
 PRACTICE LAW AND RULES; AND
   (4)  A  WILLFUL  FAILURE  TO COMPLY WITH A COURT ORDER CONDITIONING OR
 LIMITING ACCESS TO A FORENSIC REPORT SHALL BE CONTEMPT OF COURT AND  MAY
 BE  PUNISHABLE  AS  SUCH  AS PROVIDED UNDER SECTION SEVEN HUNDRED FIFTY-
 THREE OF THE JUDICIARY LAW. THE COURT SHALL NOTIFY THE PARTIES AND COUN-
 SEL ON THE RECORD THAT A WILLFUL FAILURE TO COMPLY WITH THE COURT  ORDER
 SHALL  BE  CONTEMPT  OF  COURT WHICH MAY INCLUDE PUNISHMENT OF A FINE OR
 IMPRISONMENT OR BOTH; AND
   (5) ADMISSIBILITY INTO EVIDENCE OF THE FORENSIC REPORT  OR  THE  COURT
 ORDERED EVALUATOR'S FILE SHALL BE SUBJECT TO OBJECTION OF ANY PARTY, HIS
 OR  HER  ATTORNEY OR THE ATTORNEY FOR THE CHILD PURSUANT TO THE RULES OF
 EVIDENCE AND SUBJECT TO THE RIGHT OF CROSS-EXAMINATION.
   § 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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Senate Bill S4686

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Alessandra Biaggi