NY State Senate Bill 2013-S7497

Senate Bill S7497

2013-2014 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 15, 2014	referred to children and families

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2013-S7497 (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

2013-S7497 (ACTIVE) - Summary

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

2013-S7497 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7497

TITLE OF BILL:  An act to amend the domestic relations law and the fami-
ly court act, in relation to child custody forensic reports

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

SUMMARY OF PROVISIONS:

Sections 1 and 2. Amend section 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, including supporting records
and data, subject to the issuance of a protective order pursuant to
section 3103 of the civil practice law and rules.

In addition, these 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, also
subject to the issuance of a protective order pursuant to section 3103
of the civil practice law and rules.

Sections 1 and 2 also provide that the court is required to give notice
to the parties and counsel, on the record, that a failure to comply with
a court order conditioning or limiting disclosure of the forensic report
or the forensic evaluator's file shall be contempt of court, which may
include punishment of a fine or imprisonment or both.

Furthermore, these 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 pre-trial discovery
of court ordered. forensic evaluations in child custody and visitation
cases.

In addition, these sections make conforming amendments identical to and
consistent with sections 1 and 2 of the proposal.

Section 5. Effective date.

JUSTIFICATION:  Presently in New York State, courts can direct mental
health evaluations of parties and their children by a court-appointed
forensic evaluator in custody and visitation eases to aid the court in
making a decision. Reports prepared by these evaluators are often
referred to as forensic reports, and among other things contain informa-
tion based on interviews with the parents, relatives, the subject chil-
dren, and any other persons who may have information bearing on the
mental health of the parties, their parenting and the parties' relation-
ship with each other and their children. The forensic reports are sent
directly to the court that has appointed the evaluator.

Under current case law and practice, access to forensic reports and
pre-trial disclosure of forensic evaluator files, including underlying
records and data for the report in child custody and visitation cases,
is not Uniform and in many instances significantly limited, often
resulting in disparate judicial determinations regarding access to these
reports and data. The limitations on access to the reports and the
underlying records and data raise serious due process concerns including
the inability of parents to adequately and effectively challenge 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, under existing practice, forensic
reports are often not subjected to the rigor of evidentiary laws and
procedures.

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 requires a lot of time and even
expert resources. These reports generally contain substantial hearsay
and hearsay-within-hearsay. The reports also contain subjective informa-
tion and may contain biased or inaccurate information. Since the parents
are most familiar with the facts of their lives, they are best posi-
tioned to identify factual errors in the forensic report.  The help of
professionals with specific expertise in the areas covered by the foren-
sic report is also important to properly evaluate 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 coun-
sel must have complete access to the report and underlying data with the
ability to share the report and underlying records and data with profes-
sionals retained to assist them, including those with expertise to help
analyze the report.

Under present practice, however, a parent's and his or her attorney's
access to these critical evaluations is not uniformly provided for.
Parents are frequently prevented from receiving copies of a forensic
report in child custody and visitation cases. Further, in cases where
they are given access to these reports, such as through 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 ability of parents and/or their counsel to adequately
prepare for trial. In addition, some of the current procedures employed

for access to forensic reports hamper the ability of parents to retain
professionals with the expertise to assist them with analyzing the
contents of the forensic reports.  Furthermore, parties and their attor-
neys are frequently not permitted access to the forensic evaluators'
files related to the case including underlying records and data. Obtain-
ing forensic reports without the ability to examine the data upon which
the reports are based is inadequate for a complete assessment of the
reports. Without the ability to thoroughly examine the report and chal-
lenge its contents if need be, a litigants right to a fair trial is
severely hampered.

A parent's interest in the care, custody and management of his or her
children 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 significant parental inter-
est at stake, it is important to afford parents and litigants in child
custody and visitation cases with appropriate 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 underlying data. In addi-
tion, this proposal enables a party to provide a copy of the forensic
report and the underlying data 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
issue a protective order limiting or conditioning access to the forensic
report or the evaluators 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 provide
clear notice to 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 admissibility into evidence of the
forensic report must be subject to the rules of evidence and the right
of cross-examination. 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 of evidence.

In sum, this proposal balances important due process rights of all liti-
gants in custody and visitation actions against any countervailing
concerns relating to a harmful impact upon subject children that may
result from unfettered access to forensic reports and under lying data.

LEGISLATIVE HISTORY: New bill - 2013.

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.

2013-S7497 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7497

                            I N  S E N A T E

                              May 15, 2014
                               ___________

Introduced  by  Sen.  SAVINO -- 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
OF  THE  PARTIES  OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL OR
ANY OTHER PERSON, BOTH OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALU-
ATORS" 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:
  (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 TO ENABLE
COMPETENT REPRESENTATION AND TRIAL PREPARATION. 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.  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 THIS SUBDIVI-
SION 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13341-02-3

S. 7497                             2

  (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.  THERE  SHALL  BE  A  REBUTTABLE PRESUMPTION THAT THE COURT ORDERED
EVALUATOR'S FILE RELATED TO HIS OR HER APPOINTMENT,  INCLUDING  ALL  THE
AFOREMENTIONED  MATERIALS,  IS DISCOVERABLE SUBJECT TO THE PROVISIONS OF
SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE  LAW  AND
RULES; AND
  (3)  A  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.  THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON
THE RECORD THAT A 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.
  S  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  OF  THE  PARTIES  OR A CHILD BY A FORENSIC MENTAL HEALTH PROFES-
SIONAL OR ANY OTHER PERSON, BOTH 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 SUBDIVISION, FOR PURPOSES OF SUCH COURT ORDERED FOREN-
SIC EVALUATIONS:
  (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 TO ENABLE
COMPETENT REPRESENTATION AND TRIAL PREPARATION. 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.  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 PARA-
GRAPH 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

S. 7497                             3

ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-
ING.  THERE  SHALL  BE  A  REBUTTABLE PRESUMPTION THAT THE COURT ORDERED
EVALUATOR'S FILE RELATED TO HIS OR HER APPOINTMENT,  INCLUDING  ALL  THE
AFOREMENTIONED  MATERIALS,  IS DISCOVERABLE SUBJECT TO THE PROVISIONS OF
SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE  LAW  AND
RULES; AND
  (3)  A  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.  THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON
THE RECORD THAT A 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.
  S  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 OF THE PARTIES
OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL OR ANY OTHER PERSON,
BOTH OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALUATORS" FOR PURPOSES
OF THIS SUBDIVISION, APPOINTED BY THE COURT TO ASSIST WITH THE  DETERMI-
NATION OF CHILD CUSTODY OR VISITATION PURSUANT TO ARTICLE FOUR OR SIX OF
THIS ACT, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALUATIONS:
  (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 TO  ENABLE
COMPETENT  REPRESENTATION AND TRIAL PREPARATION. 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. 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 SUBDIVI-
SION 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. 7497                             4

ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-
ING.  THERE  SHALL  BE  A  REBUTTABLE PRESUMPTION THAT THE COURT ORDERED
EVALUATOR'S FILE RELATED TO HIS OR HER APPOINTMENT,  INCLUDING  ALL  THE
AFOREMENTIONED  MATERIALS,  IS DISCOVERABLE SUBJECT TO THE PROVISIONS OF
SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL PRACTICE  LAW  AND
RULES; AND
  (4)  A  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.  THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON
THE RECORD THAT A 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.
  S  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 OF THE PARTIES
OR A CHILD BY A FORENSIC MENTAL HEALTH PROFESSIONAL OR ANY OTHER PERSON,
BOTH OF WHOM SHALL BE CONSIDERED "COURT ORDERED EVALUATORS" FOR PURPOSES
OF  THIS SUBDIVISION, APPOINTED BY THE COURT TO ASSIST WITH THE DETERMI-
NATION OF CHILD CUSTODY OR VISITATION PURSUANT TO THIS ARTICLE OR  ARTI-
CLE FOUR OF THIS ACT, FOR PURPOSES OF SUCH COURT ORDERED FORENSIC EVALU-
ATIONS:
  (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 TO  ENABLE
COMPETENT  REPRESENTATION AND TRIAL PREPARATION. 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. 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 SUBDIVI-
SION 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. 7497                             5

ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-
ING.  THERE  SHALL  BE  A  REBUTTABLE PRESUMPTION THAT THE COURT ORDERED
EVALUATOR'S FILE RELATED TO HIS OR HER APPOINTMENT,  INCLUDING  ALL  THE
AFOREMENTIONED MATERIALS, IS DISCOVERABLE SUBJECT TO SECTION THREE THOU-
SAND ONE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES; AND
  (4)  A  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.  THE COURT SHALL NOTIFY THE PARTIES AND COUNSEL ON
THE RECORD THAT A 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.
  S  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 S7497

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Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Children And Families Committee

co-Sponsors

Tony Avella

Ruth Hassell-Thompson

Kevin S. Parker

John L. Sampson

2013-S7497 (ACTIVE) - Details

2013-S7497 (ACTIVE) - Summary

2013-S7497 (ACTIVE) - Sponsor Memo

2013-S7497 (ACTIVE) - Bill Text download pdf

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