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Mother Seeks to Modify Custody Arrangement


This action arises out of a previously child custody case. A New York Family Lawyer said the parties were married and divorced by a decision which incorporated the condition of settlement placed on the record in open court. The condition and decision of separation provided that the parties should share joint custody of their daughter with her primary residence being with the mother.

Consequently, the father filed an application requesting custodial time with their daughter. The mother however cross-moved for an order suspending the father’s visitation with the child, appointing a new law guardian, and referring alleged evidence of the father’s abuse to the child. The father thereafter filed an application for sole custody of the child and requested that the mother have only supervised visitation. The court appointed then a forensic psychologist to interview both parties and the child, and to prepare forensic evaluations. The forensic psychologist filed her report, in which she recommended that the father should receive sole custody and that the mother must have liberal visitation. In response to a report of suspected child abuse and maltreatment of the child filed by the mother, a trial was held. Thereafter, an order continuing joint custody, but providing that primary physical custody of the child would be with the father and the mother would have supervised visitation two to three times a week, was issued.

A New York Custody Lawyer said an eleven day trial took place and during which numerous witnesses testified, including the forensic psychologist, the mother of the child, the father of the child, a case worker, a child protective specialist, the mother’s former husband, and two certified social workers. According to the judge extensive written decision, the forensic psychologist testified with a reasonable degree of psychological certainty that the father should receive physical custody of the child and that the child should visit with the mother in the mother’s home. The psychologist’s forensic reports were also introduced into evidence. The child’s law guardian took the position that the father should receive sole custody. Afterwards, the court awarded the father sole custody of the child, with the mother to have supervised visitation. In addition, an order setting the details of the custody and visitation arrangements were signed.

The court also ordered that counsel must signed affidavits that indicate that the forensic reports are not to be distributed, copied or in any way disseminated. A Nassau Count Family Lawyer said if it comes to the court’s attention that the affirmations and the court’s directive have in any way been disregarded, that person will be cited for contempt, and upon a finding of willfulness, be imprisoned. The counsel shall not turn over forensic reports without notifying the court that he/she has been replaced as attorney, and that the court has advised counsel that it has received the new attorney’s affirmation.

The forensic psychologist died suddenly and unexpectedly during the pendency of the motion. The mother of the child now moved for an order releasing to counsel all documents, records, testing materials, notes, graphs, and scores upon which the court appointed the forensic psychologist in the underlying change of custody application.

In support to the instant motion, a Nassau County Custody Lawyer said the mother of the child relies upon a memorandum from another doctor to her former attorney, which states that the discrepancy that exists with respect to the test findings raises obvious concerns about conclusions drawn by the forensic psychologist in the matter as it pertains to the mother’s diagnosis and perhaps more importantly, to issues that impact on her ability to properly/adequately parent to the child.

The mother of the child consequently concludes that the forensic psychologist’s interview notes, testing data, raw scores, answer sheets, scoring graphs, and interpretative reports for the MMPI-2 given to the mother are required, as they were not introduced at the time of trial and may or may not effect a different result after a thorough review and evaluation by a competent psychological expert. Therefore, the requested material is needed so that the mother can determine whether there is a basis for renewal and re-argument. Although the mother requested that the father of the child’s attorney and the law guardian release the records, they refused to comply with the request, apparently in recognition of the order sealing the record. At oral argument, the mother further asserted that the order sealing the records was not in compliance with the requirements which pertain to the sealing of court records.

In opposition, the father of the child argues that the mother’s request should be denied as untimely and lacking in merit. More specifically, the father alleges that the custody determination of the mother is attacking in the subject of a pending appeal.

Based on records, if the mother of the child believes that the test results underlying forensic psychologist’s findings should have been produced, that issue should have been raised during the trial and then raised on appeal. If the issue was not so raised and appealed, the mother of the child should considered to have waived it. In the alternative, the mother of the child’s request for judicial relief is without merit, since there is no demand for relief pending in the court, even if there were, the court has held that pre-trial discovery of the material sought is not available inasmuch as the parties’ attack in the expert’s findings is limited to cross examination at trial.

Moreover, the mother of the child requested the release of the documents during the trial, which request was granted and the records were provided to another doctor. However, the doctor did not testify, nor did the mother of the child seek the release of the underlying test findings. Even if the mother of the child’s appeal of the custody has been perfected, the issue of the propriety of sealing forensic psychologist’s record was not addressed therein.

The court stated that the mother of the child’s instant motion is therefore similar to a demand for disclosure to aid in bringing an action. An appeal for pre-action discovery should only be granted when the complainant demonstrates that he or she has a commendable cause of action and that the information sought is material and necessary to the actionable wrong. It cannot be used to ascertain whether a cause of action exists. Herein, the mother of the child is only speculating the test results sought would impact upon the custody determination. It is noted that if the mother of the child were to commence another proceeding seeking to alter the custody arrangement, raw test data and/or a forensic evaluation conducted approximately three years ago would have little, if any, probative value.

Moreover, even if the mother of the child did have an application seeking a change of custody pending, discovery on the issues of fault and custody are limited. Rather, the conclusions of the court-appointed neutral forensic psychologist, like those of any other expert witness, are subject to question, through the process of cross-examination and refutation. As noted above, the mother of the child had a full opportunity at trial to cross examine forensic psychologist with regard to the raw data relied upon in reaching her determination. However, it would not be possible for the mother of the child to cross examine the forensic psychologist, since she is now deceased.

For that reason, the court concluded that the mother of the child’s motion is denied in its entirety.

Couples usually encounter disagreement during the course of their relationship but some of them end in an unfortunate separation. If you need legal guidance, you can ask the Bronx County Family Lawyer. If you want to fight for sole custody of your child, the Bronx County Child Custody Attorney can offer you assistance and the Bronx County Child Support Lawyer can help you to seek support for your child. Simply call or visit Stephen Bilkis and Associates office.

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