A Shift in Pretrial Forensic File Disclosure in New York
02 Apr 2016
A Shift in Pretrial Forensic File Disclosure in New York On the premise that the potential for abuse is substantial, New York courts have traditionally not allowed pretrial disclosure of the notes, raw data and test results of the forensic evaluator in child custody cases, absent a convincing showing of “special circumstances.” Such “special circumstances” have been limited to a demonstration of bias, deficiency in the report or other specific reason to doubt the credibility of the report. Ochs v Ochs, 193 Misc. 2d 502 (Sup. Ct., Westchester Co., 2002). The reality of the situation in contested custody litigation, however, is that proof of bias or deficiency in the methodology through which the evaluation was conducted will not appear on the face of the report, but will likely emerge only after review of the notes, raw data and test results contained in the forensic evaluator’s file -- which typically cannot be obtained pretrial absent “special circumstances.” The absence of logic or reason in this patently circular exercise has not been lost on certain courts in New York. Thus, two recent lower court decisions have come to the conclusion that without pretrial disclosure of the forensic evaluator’s underlying file, significant factual or methodological errors in the process or the evaluation may likely never be exposed, with result being a compromise of the ultimate goal -- protecting the best interests of the child. These courts have concluded that any specific potential for abuse can be ameliorated by the court’s control of the process through a motion for protective order. Accordingly, these decisions have concluded that proper balance of the due process and best interests of the child concerns at stake are protected by applying a rebuttable presumption that pretrial discovery of the forensic evaluator’s entire underlying file is warranted in every case, subject to a specific motion to restrain the release of those materials based upon a showing of substantial prejudice. K.C. v. J.C., No. 2015-25421 (Sup. Ct., Westchester Co., December 10, 2015); J.D.F. v J.D., 45 Misc. 3d 1212(A) (Sup. Ct., Nassau Co., 2014). To date, no appellate court in New York appears to have addressed this issue. We anxiously await a definitive appellate ruling, and expect that such will favor the modern trend of the lower courts which best balances the interests at stake while ensuring that all necessary and material information is available to the parties to ensure that the best interests of the child are protected in each case.