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Court Discusses Use of Forensic Evidence in Custody Dispute


In this Custody action, the issue involved is of import not only because it appears to lack any precedent, but even more so, because it goes to the very heart of the present and future effectiveness of the forensic and probation referral procedure utilized by the Nassau County Supreme Court as an aid in the determination of contested custody actions.

A New York Family Lawyer said that pursuant to this procedure the court, with the consent of the parties and counsel, ordered a forensic evaluation of the parties and infant issue through the Nassau County Department of Mental Health, Division of Forensic Services, and a probation report through the Probation Department of Nassau County.

Thereafter, a New York Child Custody Lawyer said in deeming the recommendations contained in the reports to be adverse to the interest of his client, counsel for the defendant-wife referred her to a private psychiatrist for examination and evaluation.

A Brooklyn Family Lawyer said the private psychiatrist of defendant now seeks to have made available to him the raw test data and doctors’ notes, and any other material used by the county staff psychiatrist and staff psychologist. The defendant’s private psychiatrist indicates that his purpose in reviewing the requested psychological tests, and related materials of the county staff physicians, is to determine whether they had sufficient objective justification for their conclusions and recommendations.

It is defendant’s contention that, pursuant to CPLR 3101(a)(4), the staff of the Forensic Division of the Department of Mental Health are hostile witnesses, in that they acted as an agent of the court in performing the tests; and further, they should be deemed “hostile” because of the “negative conclusions as to the defendant” contained in their reports.

A Brooklyn Child Custody Lawyer said the general rule of disclosure calls for liberal disclosure unless special circumstances can be shown as to why it should be withheld. Discovery and inspection of privileged communications may be granted in custody proceedings, depending upon the circumstances.

In custody matters the sole test is not whether the material is confidential and privileged but, rather, whether the discovery sought is necessary and material to a determination of the custody of a minor child.

In this matter before the court the parties, by stipulation, agreed to a referral to the Nassau County Probation Department for a psychological study and evaluation, and the parties signed a consent form to such studies and report.

When the court ordered the referral of the parties to the Nassau County Probation Department and to the Division of Forensic Services, it did so by order, containing the following direction: “In this custody matter, parties and counsel have stipulated and consented to an investigation by the Probation Department of Nassau County. The Court requests a full evaluation and a psychiatric and psychological study if needed of all parties the Probation Department deems necessary.

The written report and copies of all examinations shall be forwarded to this Court. Upon receipt, counsel will be notified and given an opportunity to examine the reports, prior to a hearing. The parties have waived all confidentiality with regard to the contents of these reports, including psychiatric information.”

The court has read the reports in question, and notes that they bear the notation, or warning, on each page, “Privileged and Confidential–For Professional Use Only–This Information not to be Revealed to Patient or Relations”. In addition, prior to undertaking its assignment, the Probation Department obtains its usual authorization of the parties to proceed with its investigation. The standard authorization form, which is signed by the parties in the case, contains the following statement: “All information received is to be submitted by the Probation Department in a report to the Judge and is to be confidential”.

The above notations, or warnings, are placed on the material in question because the experience of those conducting the tests reflects that to provide otherwise would adversely affect their ability to conduct adequate tests or counseling sessions. Thus, it is of note that the order of referral to probation and forensic is upon the consent of all concerned. The continuous supportive utilization of this procedure by the Matrimonial Bar is further recognition that these departments act in an impartial and unbiased manner, with their sole objective being to be of assistance to the court, parties and counsel in the resolution of these most difficult types of cases.

In determining the custody of a minor child, the court acts as parens patriae and must base its determination solely upon the best interests of the child. Also, by agreeing to the stipulation a party may waive any objection to an unlimited access of certain portions of the confidential reports and supporting data.

The court further notes that the making available of the raw material utilized by the forensic division would undermine the effectiveness of their services and recommendations, which experience has shown serves as a significant factor in bringing about amicable resolutions of many custody proceedings which, otherwise, would result in lengthy, emotional and traumatic trials.

There are objections that the needless routine subpoenaing of the professional staff of the Department of Mental Health, Forensic Division, would be counterproductive to the proper performance of this program, nevertheless, there are situations, such as in this instance, where it would be appropriate to subpoena said staff members. Therefore, defendant’s adequate remedy in this instance would be to subpoena any and all of the professional staff of the Department of Mental Health, Forensic Division, as she deems necessary, along with a directive that they are to being with them any notes or recommendations, including the results of the psychological tests used or made by them in making their evaluations.

Thus, defendant will in no way be prejudiced and will have full opportunity to cross-examine the professional personnel of the Forensic Division concerning the testing procedure and the bases for their evaluations, conclusions and recommendations.

In custody cases, the paramount thing to be considered is the best interest of a child. Here in Stephen Bilkis and Associates, our Nassau County Child Custody attorneys will help you argue before the courts that the child will be better when a custody will be awarded to you. In case a child was abused, we also have Nassau County Abused and Neglect lawyers who will file the necessary court cases against the assailant and the negligent parent. Contact us now, it’s our pleasure to help and serve you.

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