WILL YOU BE ALLOWED TO READ FORENSIC REPORTS?
By Sari M. Friedman, General Counsel
Father's Rights Association, LI and NY
In custody and visitation disputes, it is becoming increasingly commonplace for the court to appoint neutral psychiatrist, psychologists, and even certified social workers to conduct a forensic evaluation of both parties and their child(ren). The purpose is to render an opinion based on what custody or visitation arrangement the expert deems to be in the best interest of the child(ren).
Who Has Access to the Forensic Reports?
Since the expert's report is submitted to the Court, the question then becomes:
Who is entitled to access to it.
In many counties in New York City, the judge not only gives copies of the report to the attorneys, but there are no restrictions placed on showing the report to the client.
I have heard one such judge say, "The litigants have a right to know what the court appointed expert thought of the parents."
In other instances in New York City, the attorneys are given a copy of the report but they are not permitted to show it to the client. The extent, however, that the litigant is permitted to be informed by the attorney of the content of the report remains ambiguous. This holds true on Long Island as well. In both Nassau and Suffolk counties, attorneys may review the reports and take whatever notes they like for as long a time as they need, but they are not allowed to have copies of the actual report to take with them. To what extent the content of the forensic report may be discussed with the client, may or may not be addressed by the individual judge. It is this issue that is the focus of the rest of this article.
How the Courts Have Ruled
The Appellate Division, Second Judicial Department (governing Long Island as well as Queens, Brooklyn, Westchester and Staten Island) has held that a litigant's attorney must be allowed access to these reports in order to be given proper opportunity to effectively cross - examine the expert and submit other evidence in connection with issues raised in the report.
(Chrisaidos v. Chrisaidos 170 A.D. 2d 428 565 Y.S. 2d 536)
In a later case, the same Court ruled that a copy of the report need not be given to the litigants.
(cf Forzano v. Forzano 213 A.D. 652, 624 N.Y.S. 2d 942)
In that case it was held that the Long Island judge's decision to allow the attorney
to review the reports in court was sufficient.
This writer disagrees.
I believe that note taking of what frequently is a 25-30 page report does not enable one to prepare for cross-examination of an expert as effectively as having the actual report would.
In neither of these reported cases did the Appellate Division address the issue of the extent to which the attorney may reveal to the litigant the content of the report. In my estimation, many judges may be somewhat perplexed on this issue. Nonetheless, common sense dictates that if the Appellate Division has properly concluded that a litigant must be able to present information at a trial or hearing to address issues raised in the forensic report, then clearly an attorney must have the latitude to discuss with the litigant the expert's factual findings in detail.
How else can the attorney have a full opportunity to elicit proper facts and information from the litigant to prepare a case?
The litigant has a constitutional right to hear the evidence in order to have ample opportunity to present his or her own evidence from a personal viewpoint.
I believe it is necessary to rethink the reasonableness of not providing attorneys with copies of the forensic report.
It increases a litigant's legal fees by requiring the attorney to spend substantial time in court taking notes on the report.
It also hinders a litigant from having the fullest and fairest opportunities to develop and present a case that challenges the accuracy of the expert's findings. Since a trial or hearing is a truth finding process, such an impediment is improper.