A new bill currently being considered by the New York State legislature would make it legal for a divorcing spouse representing themselves pro se to obtain copies of any forensic custody reports created as part of the proceeding. They would also, in the current version of the bill, obtain access to any underlying data used to compile the report. This has led some to fear how forensic reports could be abused by pro se litigants, either as part of the divorce proceeding or in outside matters.
Forensic custody reports are typically compiled when a judge wishes to make a custody decision but there have been allegations of abuse neglect, a mental health issue involving one or both members of the divorcing couple, or the child. The judge will order the report, and an investigation will take place that examines the parents’ behavior (both with and without their children present), review documents, and speak with collateral resources such as friends and treating therapists that may be relevant to a custody determination. The investigator will then issue the report, giving their subjective determination as to what they believe about the suitability of both parents for custody.
While, in theory, it is reasonable that those who cannot afford a lawyer should be permitted to access forensic reports in the same way that lawyers can, in practice there are many potential problems that can arise from giving pro se litigants access to these reports. First, divorce proceedings are already emotionally charged events where there is a significant temptation to engage in various forms of manipulation or coercion, particularly when it comes to custody proceedings, and the information found in those reports would facilitate such abuse by bad faith litigants. Second, pro se litigants are not held to the same standards that lawyers are and have no ethical or legal obligations to protect the sensitive information found in these reports. Finally, there is a high risk that the information contained within these forensic reports could be intentionally or accidentally disseminated, potentially resulting in irreparable harm to one or both spouses as well as their children.
For these reasons and more, the bill has been opposed by the New York State Bar Association’s Family Law Section, the Women’s Bar Association of the State of New York, and the American Academy of Matrimonial Attorneys New York Chapter. Additionally, the Office of Court Administration’s Matrimonial Practice Advisory and Rules Committee has offered potential alternative solutions to the problem this bill is attempting to address. However, the bill continues to go forward, although it currently lacks the support among legislators to pass.
If you are considering a divorce, seeking the guidance of an experienced New York family law attorney may be crucial to protecting the best interests of yourself and your child. Contact the family lawyers at the Marnell Law Group. They have extensive experience in custody and visitation disputes and will fight hard on your behalf. Call (516) 542-9000 for more information, or contact us to schedule a consultation.