WILL YOU BE ALLOWED TO READ FORENSIC REPORTS?
By Sari M. Friedman, General Counsel
Father's Rights Association (NYS & Long Island)
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
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.