NY State Senate Bill 2015-S7089

Senate Bill S7089

2015-2016 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 Rules 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
Jun 17, 2016	committed to rules
May 16, 2016	advanced to third reading
May 11, 2016	2nd report cal.
May 10, 2016	1st report cal.789
Mar 23, 2016	referred to children and families

Votes

- May 10, 2016 - Children And Families Committee Vote
  S7089
  
  7
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 10, 2016
      
      aye (7)
      
      Avella
      
      Bonacic
      
      Montgomery
      
      Persaud
      
      Savino
      
      Serino
      
      Young

2015-S7089 (ACTIVE) - Details

See Assembly Version of this Bill:: A290
Current Committee:: Senate Rules
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
2017-2018: S6300, A1533
2019-2020: S4686, A5621
2021-2022: S753, A8110
2023-2024: S4434, A3771

2015-S7089 (ACTIVE) - Summary

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

2015-S7089 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7089

 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
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.

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 give notice to
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
forensic 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
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 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 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,
the forensic reports are frequently 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 including any defects therein
requires a lot of time and even expert resources. These reports
generally 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 forensic report. The help of professionals with specific
expertise in the areas covered by the forensic 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 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 ability 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
visitation cases due process protections and evidentiary safeguards.

This proposal gives the litigants, their counsel, if any, and the
attorney 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
countervailing concerns relating to a harmful impact on the children
subject to the litigation that may result from unfettered access to
forensic reports and underlying data in child custody and visitation
cases.

 LEGISLATIVE HISTORY :

New bill in Senate.
2015 and 2014: Assembly bill died on 3rd Rdg.
2013: Assembly bill died in Judiciary.

 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.

2015-S7089 (ACTIVE) - Bill Text download pdf

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

                                  7089

                            I N  S E N A T E

                             March 23, 2016
                               ___________

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
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
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

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

                                                           LBD00074-01-5

S. 7089                             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,  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
COUNSEL  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.
  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  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
MATERIALS PROVIDED TO OR RELIED UPON BY THE COURT ORDERED EVALUATOR  AND
ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-

S. 7089                             3

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
COUNSEL 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.
  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 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
ANY RECORDS, PHOTOGRAPHS OR OTHER EVIDENCE FOR INSPECTION AND PHOTOCOPY-

S. 7089                             4

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
COUNSEL 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.
  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  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-
ING,  SUBJECT  TO  SECTION THREE THOUSAND ONE HUNDRED THREE OF THE CIVIL
PRACTICE LAW AND RULES; AND

S. 7089                             5

  (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
COUNSEL  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.
  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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