Bill Text: NY A03771 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings.
Spectrum: Moderate Partisan Bill (Democrat 8-1)
Status: (Introduced) 2024-01-03 - referred to judiciary [A03771 Detail]
Download: New_York-2023-A03771-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3771 2023-2024 Regular Sessions IN ASSEMBLY February 8, 2023 ___________ Introduced by M. of A. WEINSTEIN, SEAWRIGHT, TAYLOR, HUNTER, DURSO -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, COOK, GLICK -- read once and referred to the Committee on Judiciary 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: 1 Section 1. Section 70 of the domestic relations law is amended by 2 adding a new subdivision (c) to read as follows: 3 (c) Court ordered forensic evaluations in proceedings involving child 4 custody and visitation. Where a court order is issued for an evaluation 5 or investigation of the parties or a child by a forensic mental health 6 professional, a probation service, a child protective service or any 7 other person authorized by statute, all of whom shall be considered 8 "court ordered evaluators" for purposes of this subdivision, appointed 9 by the court to assist with the determination of child custody or visi- 10 tation pursuant to this article, for purposes of such court ordered 11 forensic evaluations and investigations: 12 (1) Any report or evaluation prepared by the court ordered evaluator, 13 to be known as a "forensic report" for the purposes of this subdivision, 14 shall be confidential and kept under seal except that, all parties, 15 their attorneys and the attorney for the child shall have a right to 16 receive a copy of any such forensic report upon receipt of such a report 17 by the court, subject to the provisions of section three thousand one 18 hundred three of the civil practice law and rules. Provided, however, in 19 no event shall a party or his or her counsel be prevented from access to 20 or review of a forensic report in advance of and during trial. Any 21 conditions or limitations imposed by the court pursuant to this subdivi- 22 sion relating to disclosure of the forensic report shall accommodate for 23 language access and disability. Upon application by counsel or a party 24 the court shall permit a copy of the forensic report and a copy of the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00064-01-3A. 3771 2 1 court ordered evaluator's files as provided for under paragraph two of 2 this subdivision to be provided to any person retained to assist counsel 3 or any party, subject to the provisions of section three thousand one 4 hundred three of the civil practice law and rules; and 5 (2) Pursuant to a demand made under rule three thousand one hundred 6 twenty of the civil practice law and rules, the court ordered evaluator 7 shall provide to a party, his or her attorney or the attorney for the 8 child the entire file related to the proceeding including but not limit- 9 ed to, all underlying notes, test data, raw test materials, underlying 10 materials provided to or relied upon by the court ordered evaluator and 11 any records, photographs or other evidence for inspection and photocopy- 12 ing, subject to the provisions of section three thousand one hundred 13 three of the civil practice law and rules; and 14 (3) A willful failure to comply with a court order conditioning or 15 limiting access to a forensic report shall be contempt of court and may 16 be punishable as such as provided under section seven hundred fifty- 17 three of the judiciary law. The court shall notify the parties and coun- 18 sel on the record that a willful failure to comply with the court order 19 shall be contempt of court which may include punishment of a fine or 20 imprisonment or both; and 21 (4) Admissibility into evidence of the forensic report or the court 22 ordered evaluator's file shall be subject to objection of any party, his 23 or her attorney or the attorney for the child pursuant to the rules of 24 evidence and subject to the right of cross-examination. 25 § 2. Subdivision 1 of section 240 of the domestic relations law is 26 amended by adding a new paragraph (a-3) to read as follows: 27 (a-3) Court ordered forensic evaluations in proceedings involving 28 child custody and visitation. Where a court order is issued for an eval- 29 uation or investigation of the parties or a child by a forensic mental 30 health professional, a probation service, a child protective service or 31 any other person authorized by statute, all of whom shall be considered 32 "court ordered evaluators" for purposes of this subdivision, appointed 33 by the court to assist with the determination of child custody or visi- 34 tation pursuant to this subdivision, for purposes of such court ordered 35 forensic evaluations and investigations: 36 (1) Any report or evaluation prepared by the court ordered evaluator, 37 to be known as a "forensic report" for the purposes of this paragraph, 38 shall be confidential and kept under seal except that, all parties, 39 their attorneys and the attorney for the child shall have a right to 40 receive a copy of any such forensic report upon receipt of such a report 41 by the court, subject to the provisions of section three thousand one 42 hundred three of the civil practice law and rules. Provided, however, in 43 no event shall a party or his or her counsel be prevented from access to 44 or review of a forensic report in advance of and during trial. Any 45 conditions or limitations imposed by the court pursuant to this subdivi- 46 sion relating to disclosure of the forensic report shall accommodate for 47 language access and disability. Upon application by counsel or a party 48 the court shall permit a copy of the forensic report and a copy of the 49 court ordered evaluator's files as provided for under subparagraph two 50 of this paragraph to be provided to any person retained to assist coun- 51 sel or any party, subject to the provisions of section three thousand 52 one hundred three of the civil practice law and rules; and 53 (2) Pursuant to a demand made under rule three thousand one hundred 54 twenty of the civil practice law and rules, the court ordered evaluator 55 shall provide to a party, his or her attorney or the attorney for the 56 child the entire file related to the proceeding including but not limit-A. 3771 3 1 ed to, all underlying notes, test data, raw test materials, underlying 2 materials provided to or relied upon by the court ordered evaluator and 3 any records, photographs or other evidence for inspection and photocopy- 4 ing, subject to the provisions of section three thousand one hundred 5 three of the civil practice law and rules; and 6 (3) A willful failure to comply with a court order conditioning or 7 limiting access to a forensic report shall be contempt of court and may 8 be punishable as such as provided under section seven hundred fifty- 9 three of the judiciary law. The court shall notify the parties and coun- 10 sel on the record that a willful failure to comply with the court order 11 shall be contempt of court which may include punishment of a fine or 12 imprisonment or both; and 13 (4) Admissibility into evidence of the forensic report or the court 14 ordered evaluator's file shall be subject to objection of any party, his 15 or her attorney or the attorney for the child pursuant to the rules of 16 evidence and subject to the right of cross-examination. 17 § 3. Subdivision (c) of section 251 of the family court act is relet- 18 tered subdivision (d) and a new subdivision (c) is added to read as 19 follows: 20 (c) Court ordered forensic evaluations in child custody and visitation 21 proceedings. Notwithstanding the provisions of this section to the 22 contrary, where a court order is issued for an evaluation or investi- 23 gation of the parties or a child by a forensic mental health profes- 24 sional, a probation service, a child protective service or any other 25 person authorized by statute, all of whom shall be considered "court 26 ordered evaluators" for purposes of this subdivision, appointed by the 27 court to assist with the determination of child custody or visitation 28 pursuant to article four or six of this act, for purposes of such court 29 ordered forensic evaluations and investigations: 30 (1) Notwithstanding section one hundred sixty-five of this act and 31 section four hundred eight of the civil practice law and rules, the 32 provisions and limitations of sections three thousand one hundred one 33 and three thousand one hundred three of the civil practice law and rules 34 shall apply; and 35 (2) Any report or evaluation prepared by the court ordered evaluator, 36 to be known as a "forensic report" for the purposes of this subdivision, 37 shall be confidential and kept under seal except that, all parties, 38 their attorneys and the attorney for the child shall have a right to 39 receive a copy of any such forensic report upon receipt of such a report 40 by the court, subject to the provisions of section three thousand one 41 hundred three of the civil practice law and rules. Provided, however, in 42 no event shall a party or his or her counsel be prevented from access to 43 or review of a forensic report in advance of and during trial. Any 44 conditions or limitations imposed by the court pursuant to this subdivi- 45 sion relating to disclosure of the forensic report shall accommodate for 46 language access and disability. Upon application by counsel or a party 47 the court shall permit a copy of the forensic report and a copy of the 48 court ordered evaluator's files as provided for under paragraph three of 49 this subdivision to be provided to any person retained to assist counsel 50 or any party, subject to the provisions of section three thousand one 51 hundred three of the civil practice law and rules; and 52 (3) Pursuant to a demand made under rule three thousand one hundred 53 twenty of the civil practice law and rules, the court ordered evaluator 54 shall provide to a party, his or her attorney or the attorney for the 55 child the entire file related to the proceeding including but not limit- 56 ed to, all underlying notes, test data, raw test materials, underlyingA. 3771 4 1 materials provided to or relied upon by the court ordered evaluator and 2 any records, photographs or other evidence for inspection and photocopy- 3 ing, subject to the provisions of section three thousand one hundred 4 three of the civil practice law and rules; and 5 (4) A willful failure to comply with a court order conditioning or 6 limiting access to a forensic report shall be contempt of court and may 7 be punishable as such as provided under section seven hundred fifty- 8 three of the judiciary law. The court shall notify the parties and coun- 9 sel on the record that a willful failure to comply with the court order 10 shall be contempt of court which may include punishment of a fine or 11 imprisonment or both; and 12 (5) Admissibility into evidence of the forensic report or the court 13 ordered evaluator's file shall be subject to objection of any party, his 14 or her attorney or the attorney for the child pursuant to the rules of 15 evidence and subject to the right of cross-examination. 16 § 4. Section 651 of the family court act is amended by adding a new 17 subdivision (g) to read as follows: 18 (g) Court ordered forensic evaluations in child custody and visitation 19 proceedings. Notwithstanding the provisions of this section to the 20 contrary, where a court order is issued for an evaluation or investi- 21 gation of the parties or a child by a forensic mental health profes- 22 sional, a probation service, a child protective service or any other 23 person authorized by statute, all of whom shall be considered "court 24 ordered evaluators" for purposes of this subdivision, appointed by the 25 court to assist with the determination of child custody or visitation 26 pursuant to this article or article four of this act, for purposes of 27 such court ordered forensic evaluations and investigations: 28 (1) Notwithstanding section one hundred sixty-five of this act and 29 section four hundred eight of the civil practice law and rules, the 30 provisions and limitations of sections three thousand one hundred one 31 and three thousand one hundred three of the civil practice law and rules 32 shall apply; and 33 (2) Any report or evaluation prepared by the court ordered evaluator, 34 to be known as a "forensic report" for the purposes of this subdivision, 35 shall be confidential and kept under seal except that, all parties, 36 their attorneys and the attorney for the child shall have a right to 37 receive a copy of any such forensic report upon receipt of such a report 38 by the court, subject to the provisions of section three thousand one 39 hundred three of the civil practice law and rules. Provided, however, in 40 no event shall a party or his or her counsel be prevented from access to 41 or review of a forensic report in advance of and during trial. Any 42 conditions or limitations imposed by the court pursuant to this subdivi- 43 sion relating to disclosure of the forensic report shall accommodate for 44 language access and disability. Upon application by counsel or a party 45 the court shall permit a copy of the forensic report and a copy of the 46 court ordered evaluator's files as provided for under paragraph three of 47 this subdivision to be provided to any person retained to assist counsel 48 or any party, subject to the provisions of section three thousand one 49 hundred three of the civil practice law and rules; and 50 (3) Pursuant to a demand made under rule three thousand one hundred 51 twenty of the civil practice law and rules, the court ordered evaluator 52 shall provide to a party, his or her attorney or the attorney for the 53 child the entire file related to the proceeding including but not limit- 54 ed to, all underlying notes, test data, raw test materials, underlying 55 materials provided to or relied upon by the court ordered evaluator and 56 any records, photographs or other evidence for inspection and photocopy-A. 3771 5 1 ing, subject to section three thousand one hundred three of the civil 2 practice law and rules; and 3 (4) A willful failure to comply with a court order conditioning or 4 limiting access to a forensic report shall be contempt of court and may 5 be punishable as such as provided under section seven hundred fifty- 6 three of the judiciary law. The court shall notify the parties and coun- 7 sel on the record that a willful failure to comply with the court order 8 shall be contempt of court which may include punishment of a fine or 9 imprisonment or both; and 10 (5) Admissibility into evidence of the forensic report or the court 11 ordered evaluator's file shall be subject to objection of any party, his 12 or her attorney or the attorney for the child pursuant to the rules of 13 evidence and subject to the right of cross-examination. 14 § 5. This act shall take effect on the ninetieth day after it shall 15 have become a law. Effective immediately, the chief administrator of the 16 courts, with the approval of the administrative board of the courts, is 17 authorized to promulgate any rules necessary to implement the provisions 18 of this act on or before such effective date.
