'Peek-a-Boo' with Forensic Custody Reports

In cases in New York's Family Court and in the Matrimonial Parts in Supreme Court, when significant questions of custody and parenting time are at issue, the courts, almost invariably, appoint a mental health expert to provide a forensic assessment and evaluation of the family, with instructions to submit a written report to the court.

Once the report is submitted, the court disburses the forensic report at its discretion. Customarily, one copy of the forensic report is given to the attorneys for each party and for the child, in exchange for an affirmation swearing that he or she will “ensure” that no additional copies are made of the forensic report and that the client is not given a copy. See Tippins, Forensic Custody Reports: Where's the Due Process?, NYLJ, May 6, 2010, p. 3, col. 1.

But What if There Is No Attorney?

In 2012, the Appellate Division of the Supreme Court for the First Judicial Department issued a decision, the results of which are now being felt as various state agencies and bar associations try to revamp the rules about which individuals can see a forensic report and under what circumstances. That decision, Sonbuchner v. Sonbuchner, 96 AD3d 566 (1st Dept. 2012), affirmed the trial court's determination to grant the mother sole custody of the parties' child. In addition, it permitted her to relocate with the child to North Carolina, where the mother was moving for her medical school residency program.

The father argued on appeal that, because he was self-represented (i.e., pro se), the court “improperly prevented him from reviewing the report in advance of the forensic expert's direct testimony.” The father was apparently able to review the forensic evaluation with his previous attorney and subsequently in the presence of a court-appointed social worker. However, the trial court had not permitted him to review the forensic report again on his own or in the company of his own mental health expert, whom he was contemplating retaining to help prepare his cross-examination of the forensic evaluator. According to the decision, the father had asked the court, “Will I have any access to [the forensic report] at all in this trial? Will I be able to? How am I supposed to prepare to cross examine him if I am not going to be able to see that report?”

The Appellate Division noted that the trial court, “erred in not allowing plaintiff to read the report before the expert testified,” but that the “error in not allowing plaintiff access to the report in advance was harmless, and provides no basis for reversal (see Ekstra v Ekstra, 78 AD3d 990, 991 [2010]; Matter of Anderson v Harris, 73 AD3d 456, 457 [2010]).” The court then took the opportunity to address the issue of forensic reports and self -represented litigants, stating:

We nonetheless reiterate, as we have previously, that counsel and pro se litigants should be given access to the forensic report under the same conditions (see Matter of Isidro A.-M. v Mirta A., 74 AD3d 673 [2010]). Because defendant's attorney had a copy of the report, the court should have given the report to pro se plaintiff, even if the court set some limits on both parties' use, such as requiring that the report not be copied or requiring that the parties take notes from it while in the courthouse.

Dissent Sees Greater Harm

Justice David Saxe dissented, stating that the matter should be remanded for a new trial on the custody issues because the father's due process rights had been violated. Justice Saxe opined that the “legitimate questions” raised by the father were “not satisfactorily handled” by the trial court, and further stated:

Effective cross-examination of the forensic expert is not possible without access to the report. Once plaintiff was permitted to proceed pro se, it was incumbent on the court to give him access to the report equivalent to that which was given to his adversary, defendant's counsel. ' Lacking adequate access to the expert's report, the pro se plaintiff had no hope of successfully cross-examining the expert. This failure of due process should be corrected and a new trial granted.'

Justice Saxe's dissent and the majority's decision have raised awareness about forensic reports and the legitimate concerns about appealable errors when courts restrict who can see them and under what circumstances.'

Next month, we will see how this state's courts and bar associations have reacted to the issue addressed in Sonbuchner, and will look at proposals now being considered to deal with the questions raised in that case.

Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is the President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association. Sophie Jacobi-Parisi, an associate of the firm and the primary author of this article, is recognized by Best Lawyers.

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In cases in New York's Family Court and in the Matrimonial Parts in Supreme Court, when significant questions of custody and parenting time are at issue, the courts, almost invariably, appoint a mental health expert to provide a forensic assessment and evaluation of the family, with instructions to submit a written report to the court.

Once the report is submitted, the court disburses the forensic report at its discretion. Customarily, one copy of the forensic report is given to the attorneys for each party and for the child, in exchange for an affirmation swearing that he or she will “ensure” that no additional copies are made of the forensic report and that the client is not given a copy. See Tippins, Forensic Custody Reports: Where's the Due Process?, NYLJ, May 6, 2010, p. 3, col. 1.

But What if There Is No Attorney?

In 2012, the Appellate Division of the Supreme Court for the First Judicial Department issued a decision, the results of which are now being felt as various state agencies and bar associations try to revamp the rules about which individuals can see a forensic report and under what circumstances. That decision, Sonbuchner v. Sonbuchner , 96 AD3d 566 (1st Dept. 2012), affirmed the trial court's determination to grant the mother sole custody of the parties' child. In addition, it permitted her to relocate with the child to North Carolina, where the mother was moving for her medical school residency program.

The father argued on appeal that, because he was self-represented (i.e., pro se), the court “improperly prevented him from reviewing the report in advance of the forensic expert's direct testimony.” The father was apparently able to review the forensic evaluation with his previous attorney and subsequently in the presence of a court-appointed social worker. However, the trial court had not permitted him to review the forensic report again on his own or in the company of his own mental health expert, whom he was contemplating retaining to help prepare his cross-examination of the forensic evaluator. According to the decision, the father had asked the court, “Will I have any access to [the forensic report] at all in this trial? Will I be able to? How am I supposed to prepare to cross examine him if I am not going to be able to see that report?”

The Appellate Division noted that the trial court, “erred in not allowing plaintiff to read the report before the expert testified,” but that the “error in not allowing plaintiff access to the report in advance was harmless, and provides no basis for reversal (see Ekstra v Ekstra, 78 AD3d 990, 991 [2010]; Matter of Anderson v Harris, 73 AD3d 456, 457 [2010]).” The court then took the opportunity to address the issue of forensic reports and self -represented litigants, stating:

We nonetheless reiterate, as we have previously, that counsel and pro se litigants should be given access to the forensic report under the same conditions (see Matter of Isidro A.-M. v Mirta A., 74 AD3d 673 [2010]). Because defendant's attorney had a copy of the report, the court should have given the report to pro se plaintiff, even if the court set some limits on both parties' use, such as requiring that the report not be copied or requiring that the parties take notes from it while in the courthouse.

Dissent Sees Greater Harm

Justice David Saxe dissented, stating that the matter should be remanded for a new trial on the custody issues because the father's due process rights had been violated. Justice Saxe opined that the “legitimate questions” raised by the father were “not satisfactorily handled” by the trial court, and further stated:

Effective cross-examination of the forensic expert is not possible without access to the report. Once plaintiff was permitted to proceed pro se, it was incumbent on the court to give him access to the report equivalent to that which was given to his adversary, defendant's counsel. ' Lacking adequate access to the expert's report, the pro se plaintiff had no hope of successfully cross-examining the expert. This failure of due process should be corrected and a new trial granted.'

Justice Saxe's dissent and the majority's decision have raised awareness about forensic reports and the legitimate concerns about appealable errors when courts restrict who can see them and under what circumstances.'

Next month, we will see how this state's courts and bar associations have reacted to the issue addressed in Sonbuchner, and will look at proposals now being considered to deal with the questions raised in that case.

Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is the President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association. Sophie Jacobi-Parisi, an associate of the firm and the primary author of this article, is recognized by Best Lawyers.

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