Bill Text: NY S04434 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to court ordered forensic evaluations and reports in child custody and visitation proceedings.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2024-01-03 - REFERRED TO CHILDREN AND FAMILIES [S04434 Detail]
Download: New_York-2023-S04434-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4434 2023-2024 Regular Sessions IN SENATE February 8, 2023 ___________ Introduced by Sen. FERNANDEZ -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families 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 25 court ordered evaluator's files as provided for under paragraph two of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00064-03-3S. 4434 2 1 this subdivision to be provided to any person retained to assist counsel 2 or any party, subject to the provisions of section three thousand one 3 hundred three of the civil practice law and rules; and 4 (2) Pursuant to a demand made under rule three thousand one hundred 5 twenty of the civil practice law and rules, the court ordered evaluator 6 shall provide to a party, his or her attorney or the attorney for the 7 child the entire file related to the proceeding including but not limit- 8 ed to, all underlying notes, test data, raw test materials, underlying 9 materials provided to or relied upon by the court ordered evaluator and 10 any records, photographs or other evidence for inspection and photocopy- 11 ing, subject to the provisions of section three thousand one hundred 12 three of the civil practice law and rules; and 13 (3) A willful failure to comply with a court order conditioning or 14 limiting access to a forensic report shall be contempt of court and may 15 be punishable as such as provided under section seven hundred fifty- 16 three of the judiciary law. The court shall notify the parties and coun- 17 sel on the record that a willful failure to comply with the court order 18 shall be contempt of court which may include punishment of a fine or 19 imprisonment or both; and 20 (4) Admissibility into evidence of the forensic report or the court 21 ordered evaluator's file shall be subject to objection of any party, his 22 or her attorney or the attorney for the child pursuant to the rules of 23 evidence and subject to the right of cross-examination. 24 § 2. Subdivision 1 of section 240 of the domestic relations law is 25 amended by adding a new paragraph (a-4) to read as follows: 26 (a-4) Court ordered forensic evaluations in proceedings involving 27 child custody and visitation. Where a court order is issued for an eval- 28 uation or investigation of the parties or a child by a forensic mental 29 health professional, a probation service, a child protective service or 30 any other person authorized by statute, all of whom shall be considered 31 "court ordered evaluators" for purposes of this subdivision, appointed 32 by the court to assist with the determination of child custody or visi- 33 tation pursuant to this subdivision, for purposes of such court ordered 34 forensic evaluations and investigations: 35 (1) Any report or evaluation prepared by the court ordered evaluator, 36 to be known as a "forensic report" for the purposes of this paragraph, 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 subparagraph two 49 of this paragraph to be provided to any person retained to assist coun- 50 sel or any party, subject to the provisions of section three thousand 51 one hundred three of the civil practice law and rules; and 52 (2) 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, underlyingS. 4434 3 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 (3) 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 (4) 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 § 3. Subdivision (c) of section 251 of the family court act is relet- 17 tered subdivision (d) and a new subdivision (c) is added to read as 18 follows: 19 (c) Court ordered forensic evaluations in child custody and visitation 20 proceedings. Notwithstanding the provisions of this section to the 21 contrary, where a court order is issued for an evaluation or investi- 22 gation of the parties or a child by a forensic mental health profes- 23 sional, a probation service, a child protective service or any other 24 person authorized by statute, all of whom shall be considered "court 25 ordered evaluators" for purposes of this subdivision, appointed by the 26 court to assist with the determination of child custody or visitation 27 pursuant to article four or six of this act, for purposes of such court 28 ordered forensic evaluations and investigations: 29 (1) Notwithstanding section one hundred sixty-five of this act and 30 section four hundred eight of the civil practice law and rules, the 31 provisions and limitations of sections three thousand one hundred one 32 and three thousand one hundred three of the civil practice law and rules 33 shall apply; and 34 (2) Any report or evaluation prepared by the court ordered evaluator, 35 to be known as a "forensic report" for the purposes of this subdivision, 36 shall be confidential and kept under seal except that, all parties, 37 their attorneys and the attorney for the child shall have a right to 38 receive a copy of any such forensic report upon receipt of such a report 39 by the court, subject to the provisions of section three thousand one 40 hundred three of the civil practice law and rules. Provided, however, in 41 no event shall a party or his or her counsel be prevented from access to 42 or review of a forensic report in advance of and during trial. Any 43 conditions or limitations imposed by the court pursuant to this subdivi- 44 sion relating to disclosure of the forensic report shall accommodate for 45 language access and disability. Upon application by counsel or a party 46 the court shall permit a copy of the forensic report and a copy of the 47 court ordered evaluator's files as provided for under paragraph three of 48 this subdivision to be provided to any person retained to assist counsel 49 or any party, subject to the provisions of section three thousand one 50 hundred three of the civil practice law and rules; and 51 (3) Pursuant to a demand made under rule three thousand one hundred 52 twenty of the civil practice law and rules, the court ordered evaluator 53 shall provide to a party, his or her attorney or the attorney for the 54 child the entire file related to the proceeding including but not limit- 55 ed to, all underlying notes, test data, raw test materials, underlying 56 materials provided to or relied upon by the court ordered evaluator andS. 4434 4 1 any records, photographs or other evidence for inspection and photocopy- 2 ing, subject to the provisions of section three thousand one hundred 3 three of the civil practice law and rules; and 4 (4) A willful failure to comply with a court order conditioning or 5 limiting access to a forensic report shall be contempt of court and may 6 be punishable as such as provided under section seven hundred fifty- 7 three of the judiciary law. The court shall notify the parties and coun- 8 sel on the record that a willful failure to comply with the court order 9 shall be contempt of court which may include punishment of a fine or 10 imprisonment or both; and 11 (5) Admissibility into evidence of the forensic report or the court 12 ordered evaluator's file shall be subject to objection of any party, his 13 or her attorney or the attorney for the child pursuant to the rules of 14 evidence and subject to the right of cross-examination. 15 § 4. Section 651 of the family court act is amended by adding a new 16 subdivision (g) to read as follows: 17 (g) Court ordered forensic evaluations in child custody and visitation 18 proceedings. Notwithstanding the provisions of this section to the 19 contrary, where a court order is issued for an evaluation or investi- 20 gation of the parties or a child by a forensic mental health profes- 21 sional, a probation service, a child protective service or any other 22 person authorized by statute, all of whom shall be considered "court 23 ordered evaluators" for purposes of this subdivision, appointed by the 24 court to assist with the determination of child custody or visitation 25 pursuant to this article or article four of this act, for purposes of 26 such court ordered forensic evaluations and investigations: 27 (1) Notwithstanding section one hundred sixty-five of this act and 28 section four hundred eight of the civil practice law and rules, the 29 provisions and limitations of sections three thousand one hundred one 30 and three thousand one hundred three of the civil practice law and rules 31 shall apply; and 32 (2) Any report or evaluation prepared by the court ordered evaluator, 33 to be known as a "forensic report" for the purposes of this subdivision, 34 shall be confidential and kept under seal except that, all parties, 35 their attorneys and the attorney for the child shall have a right to 36 receive a copy of any such forensic report upon receipt of such a report 37 by the court, subject to the provisions of section three thousand one 38 hundred three of the civil practice law and rules. Provided, however, in 39 no event shall a party or his or her counsel be prevented from access to 40 or review of a forensic report in advance of and during trial. Any 41 conditions or limitations imposed by the court pursuant to this subdivi- 42 sion relating to disclosure of the forensic report shall accommodate for 43 language access and disability. Upon application by counsel or a party 44 the court shall permit a copy of the forensic report and a copy of the 45 court ordered evaluator's files as provided for under paragraph three of 46 this subdivision to be provided to any person retained to assist counsel 47 or any party, subject to the provisions of section three thousand one 48 hundred three of the civil practice law and rules; and 49 (3) Pursuant to a demand made under rule three thousand one hundred 50 twenty of the civil practice law and rules, the court ordered evaluator 51 shall provide to a party, his or her attorney or the attorney for the 52 child the entire file related to the proceeding including but not limit- 53 ed to, all underlying notes, test data, raw test materials, underlying 54 materials provided to or relied upon by the court ordered evaluator and 55 any records, photographs or other evidence for inspection and photocopy-S. 4434 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.
