Under What Conditions Should Litigants Have Access to Their Forensic Reports?
-Catherine Miller, JD
Once a forensic custody evaluation is completed and submitted to the Court, counsel, litigants, and retained experts seek to review the report to prepare for trial. Typically, a copy of the report is provided to attorneys who review it with their clients but do not reveal the children’s statements to the evaluator. It is well-established practice not to provide reports to litigants directly, and they are not permitted to be disseminated or photocopied for the litigants. Litigants, especially those representing themselves, face challenges in dealing with forensic reports. Those challenges include limited access to the report, the inability to fully review it, the inability to challenge the report and properly prepare for trial, and the inability to enforce orders prohibiting the dissemination of the report.
If a Court were to grant a parent unrestricted access to a report, there may be a risk to the other party or a detriment to the child. A parent may show the report to the children; a parent may copy and publish the report; and the children’s statements to the evaluator may be disclosed to the parent. Arguably, by not providing a copy of the report to the pro se litigant, they are at a disadvantage to the party represented by counsel. However, the risk that the report will be publicly distributed or disclosed to the child(ren) is a far greater concern and outweighs the prejudice to the unrepresented party.
In an effort to address this concern while providing proper access to the report, courts have denied parents physical or digital copies of the reports. However, parents are provided with liberal access to the report at the courthouse. Over an extended period of time, the parent is allowed to review the report and take notes as to its contents (see, Matter of Raymond v Raymond, 174 AD3d 625, 625, 107 NYS3d 433 [2nd Dept 2019]; Matter of Isidro A.-M. v Mirta A., 74 AD3d 673, 902 NYS2d 362 [1st Dept 2010]; Matter of Morrissey v Morrissey, 225 AD2d 779, 639 NYS2d 953 [2nd Dept 1996]; Matter of Scuderi-Forzano v Forzano, 213 AD2d 652, 624 NYS2d 942 [2nd Dept 1995]). In an instance in which the trial court denied the pro se plaintiff adequate access to the expert’s report, the Court held that the pro se litigant should have been provided with restricted access to the report. Since the plaintiff’s due process rights were violated, a new trial was granted (Sonbuchner v Sonbuchner, 96 AD3d 566, 571, 947 NYS2d 80 [1st Dept 2012]).
Several recommendations regarding access to the reports have been submitted by various advisory committees. It is recommended that the practice of not allowing a parent to receive a copy of the forensic report be continued. However, the represented litigant may review it with their attorney, and the unrepresented litigant may review it in the courthouse (New York City Bar Association 2012). The Report of the Matrimonial Practice Advisory and Rules Committee to the Chief Administrative Judge of the Courts of the State of New York (January 2017 and 2021), also recommended that parties may review the report in the office of their attorney, discuss the report with their attorney, and also make notes about the report. For self-represented litigants, the report, including the entire file, without limitation (everything that a party’s attorney and the attorney for the child is entitled to review), should be available at the courthouse for inspection and note-taking, but not photocopying or photographing. This provides an opportunity for trial preparation while limiting the dissemination of the report.
The Report of the Blue-Ribbon Commission on Forensic Custody Evaluations (December 2021) recommended a uniform process permitting litigants access to reports with adequate safeguards, such as redacting names and addresses, particularly where confidentiality orders and orders of protection are in place. There should be orders prohibiting the sharing of confidential information, and the court should have discretion to impose case-specific conditions or limitations on the public dissemination of information in reports. There is a further suggestion that the child’s statements to the evaluator be redacted to avoid any risk to the child. Legislative proposal 2025-26 A5143 provided that the forensic report be kept under seal, except that all parties, their attorneys and the attorney for the child have a right to a copy of the report subject to a protective order pursuant to CPLR 3103. Any conditions or limitations imposed by the court relating to the disclosure of the report shall accommodate language access and disability. That proposal, introduced by Assemblyman Dinowitz, was deemed active and referred to the Judiciary Committee.
In an effort to balance concerns about the public dissemination of intimate family matters with the litigants’ rights to the forensic custody report, the majority of jurists now permit pro se litigants to review a copy of the report in the courtroom. Photocopying and photographing the report remains prohibited, but litigants are permitted to take notes and are permitted a substantial amount of time to review the report.
Catherine Miller, JD is currently a Court Attorney Referee in Suffolk County Family Court. Ms. Miller maintained a private law practice for over 30 years focusing on Matrimonial and Family Law and serving on both the Attorney for Children Panel and the Suffolk County 18b panel. Ms. Miller is a past member of the Suffolk County Bar Association Board of Directors and former co-chair of the Family Court Matrimonial Law Committee and former member of the Judicial Screening Committee and Charitable Foundation; Past President of the Suffolk County Matrimonial Bar Association. Ms. Miller also serves on the Child Welfare Court Family Court Improvement Project. In 2017 Ms. Miller completed a Fellowship Program at Georgetown University’s Judicial Institute which focused on LGBTQ Youth in the Court System.