Attorneys are applauding a recent decision out of Nassau County Supreme Court allowing parties to access to the entire file of a court-appointed forensic evaluator in a child custody dispute. On October 17, Justice Goodstein ordered in J F.D. v. J D. that, from now on, both attorneys and their clients would be permitted to read an evaluator’s report, as well as the raw materials created and maintained throughout the evaluation process.
In the past, New York courts generally have not permitted discovery of the raw materials in an evaluator’s file pre-trial, unless the parties could show “special circumstances” such as evaluator bias or some other deficiency in the report. Assemblywoman Helene Weinstein recently proposed a bill, which did not pass, aimed at rectifying what she saw as limitations on due process by amending Domestic Relations Law §§ 70 and 240 to allow parties discovery of an evaluator’s entire file pursuant to any additional limitations set by the court. Shejustified this proposal by pointing to the fact that “[s]ince theparents are most familiar with the facts of their lives, they are best positioned to identify factual errors …” as well as noting that the parents’ interest in the custody and care of their children is a well-recognized fundamental liberty interest.
In his decision, Justice Goodstein pointed out his agreement with the propose bill and declared his belief that “special circumstances” were unnecessary to order the release of an evaluator’s entire file. He wrote that without the ability to review an evaluator’s raw materials, he did not understand how parties would be able to adequately identify bias or deficiencies in the evaluator’s report or properly bring these issues to the attention of the court. Failure to disclose these materials, he wrote, “could be detrimeiitarto llie-besf — – interests of the child and this Court’s ultimate decision.”
Justice Goodstein ordered that the parties themselves would be permitted to review the report and its raw materials in the presence of their attorneys and would be permitted to take notes, but would not be allowed to possess copies or photos of the report and raw materials. He determined that by allowing parties to review the entire evaluator file, they would be able to better assist their attorneys in preparing for cross-examination.
A more detailed summary of this ruling can be read in the New York Law Journal here: http://www.newyorklawjournal.com/this-weeks-news/id= 1202674624071/Judge-Vows to-Grant-Parties-Access-to-F orensic-Reports?mcode= 1202615038803&curindex=11