Bill Text: NY A05621 | 2019-2020 | General Assembly | Introduced


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

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Engrossed) 2019-06-11 - REFERRED TO RULES [A05621 Detail]

Download: New_York-2019-A05621-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5621
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2019
                                       ___________
        Introduced  by  M. of A. WEINSTEIN, SEAWRIGHT, TAYLOR -- Multi-Sponsored
          by -- M. of A.   BRAUNSTEIN, COOK, GLICK,  JAFFEE  --  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.
                                                                   LBD00926-01-9

        A. 5621                             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. 5621                             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, underlying

        A. 5621                             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. 5621                             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,  provided, however, that effective immediately the
    16  chief administrator of the courts, with the approval of the  administra-
    17  tive  board  of the courts, is authorized and directed to promulgate any
    18  rules necessary to implement the provisions of this  act  on  or  before
    19  such effective date.
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