Bill Text: NY S04686 | 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 1-0)

Status: (Introduced) 2019-03-20 - REFERRED TO CHILDREN AND FAMILIES [S04686 Detail]

Download: New_York-2019-S04686-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4686
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 20, 2019
                                       ___________
        Introduced  by  Sen.  BIAGGI -- 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.
                                                                   LBD00926-01-9

        S. 4686                             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-3) to read as follows:
    26    (a-3)  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,  underlying

        S. 4686                             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 and

        S. 4686                             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. 4686                             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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