NY State Senate Bill 2023-S4434

Senate Bill S4434

2023-2024 Legislative Session

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

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Current 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
Jan 03, 2024	referred to children and families
Feb 08, 2023	referred to children and families

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2023-S4434 (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
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7089
2017-2018: S6300
2019-2020: S4686
2021-2022: S753

2023-S4434 (ACTIVE) - Summary

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

2023-S4434 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S4434

SPONSOR: FERNANDEZ
 
TITLE OF BILL:

An act to amend the domestic relations law and the family court act, in
relation to child custody forensic reports

 
PURPOSE OR GENERAL IDEA 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:

  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  notify  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 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. 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 notify 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 children 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 children, 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 children. The foren-
sic  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  other-
wise  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
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 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 notify
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 countervail-
ing 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.

 
PRIOR LEGISLATIVE HISTORY:

2021-2022: S753 / A8110

2019-2020: S4686 / A5621

2017-2018: S6300 / A1533

2015-2016: S7089 / A290

2013-2014: A8342

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This  act  shall  take  effect  on the ninetieth day after it shall have
become a law. Effective immediately,  the  chief  administrator  of  the
courts,  with the approval of the administrative board of the courts, is
authorized to promulgate any rules necessary to implement the provisions
of this act on or before such effective date.

2023-S4434 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4434
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 8, 2023
                                ___________
 
 Introduced by Sen. FERNANDEZ -- 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.
                                                            LBD00064-03-3

 S. 4434                             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-4) to read as follows:
   (A-4)  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. 4434                             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. 4434                             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. 4434                             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. Effective immediately, the chief administrator of the
 courts,  with the approval of the administrative board of the courts, is
 authorized to promulgate any rules necessary to implement the provisions
 of this act on or before such effective date.

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Senate Bill S4434

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Nathalia Fernandez