In custody proceedings, in the Family Courts and Supreme Courts of New York State, the Judge will often order the parties, the child or children and the significant others of the parties be interviewed by forensic experts. Thereafter, the forensic expert usually issues a written report. Should the case go to trial, the forensic expert will testify at trial with regard to the material in his or her report.
Neutral Forensic Experts
The forensic reports of neutral experts are submitted to the Court. The attorneys for the parties are entitled to review the reports. In most instances the attorneys are not allowed to provide a copy of the report to their clients. The attorneys usually take notes as to what is in the report and utilize their notes with regard to the examination and cross examination of the forensic expert at the time of trial.
Forensic Expert Reports And Individuals Representing Themselves
What happens if the individual in the custody dispute represents himself or herself? In these situations shouldn’t the individual representing him or herself be given access to the report so he or she will be on equal standing as the attorney for the other party with regard to the testimony of the expert at the trial?
In a recent case before an Appeals Court (the Appellate division of the First Department) entitled Sonbuchner v. Sonbuchner, the issue of individuals representing themselves and having access to forensic expert reports was dealt with. The case involved the mother trying to relocate her child from New York to North Carolina. The father objected to the relocation claiming it would have a negative impact on his parenting time with the child. A forensic report was prepared. The father sought to review the report. His request was denied. The case went to trial and the mother won.
The father appealed claiming that he should have been given access to the forensic report which the Court accepted into evidence. The Appellate Division found the trial court had made an error in not allowing the father to review his report. However, they found this was “harmless error.” How could this be harmless error?
Fairness Requires Equal Access to Forensic Expert Reports
Litigants should have equal access to all material that impacts their case. In this case, the father representing himself was forced to try his case at a disadvantage. The other attorney was fully cognizant of the material in the expert report prior to it being presented into evidence. He was not.
Due Process Denied
Justice David Saxe, who had a dissenting opinion on this case, stated “expert reports by mental health professionals are an important element at trial of custody litigation. The procedure typically employed by the New York trial courts in recent years is to provide a copy of the expert’s report to the attorneys, with the direction that the copies are not to be provided to their clients or others outside the litigation team.” The Judge went on to write in the event a litigant is self-represented, a copy of the report should be maintained at the Courthouse and provided to the litigant. The dissenting opinion was correct and the majority opinion was wrong.
About the Attorney
Elliot S. Schlissel is a fathers’ rights lawyer representing fathers in child custody, visitation, child support, relocation cases and all other issues involving father’s parental rights. He has been practicing law for more than 34 years.
