Nassau County Family Law Blog

Monday, February 2, 2015

Judge's Decision in Child Custody Matter Seeks to Expand Discovery

Can parents have access to child custody forensic reports prepared by court-appointed evaluators?


One of the hardest parts of a divorce proceeding can often be determining custody of the children. When custody is disputed, the court generally appoints an attorney to represent the children's interests, as well as a forensic evaluator to assess family dynamics and recommend custody arrangements. The report prepared by the court-appointed evaluator is almost always available for review by the the attorneys in the case, but historically was not made available to the parties themselves. A recent decision seeks to change this and might usher in a new era of discovery in child custody litigation.

In J.F.D. v. J.D., each parent was seeking sole custody of the couple's two children. A forensic report was prepared and released to counsel for both sides. The husband requested that the court-appointed evaluator's entire file be provided to his own forensic expert. The husband's request was granted, and it also prompted the judge to examine the larger issue of discovery during custody litigation.

Since forensic reports are relied upon so heavily by the court, the judge reasoned that the parties should be given an opportunity to review them as well as the underlying data. Without such an opportunity, the judge found it unreasonable to expect parties to identify deficiencies in the report or evaluator bias; it also made preparing for cross examination of the forensic evaluator more difficult.

The judge ruled that, going forward, parties will be allowed to view the forensic reports and underlying data in their attorney's office with an attorney present. Parties will not receive a copy of the report or other materials but will be permitted to take notes (not pictures).

Nassau County attorney Howard B. Leff has more than 35 years of experience with family law matters, including child custody litigation. He serves clients on Long Island and in all five boroughs of New York City. Call him today at (516)739-7500.

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