In 2011, after the parties separated, the mother received sole custody of the parties’ only child, who resided with her. The father was awarded access every weekend. The father subsequently filed a petition seeking increased access. After a hearing, Kings County Family Court Judge Maria Arias denied the pro se father’s petition.

The father appealed, contending that the Family Court should have granted his request for a copy of a forensic report prepared by a court-appointed forensic evaluator, and that the court erred in admitting the forensic report into evidence. In its July 10, 2019 opinion in Raymond v. Raymond, the Second Department affirmed.

The appellate court held that Judge Arias did not improvidently exercise her discretion when denying the request of the father for a copy of the forensic report. Judge Arias had provided the father with liberal access to the report over an extended period of time during which he could review the report upon request and take notes with regard to its contents. The father failed to show that his ability to prepare for the hearing was prejudiced by his not having his own physical copy of the report.

Note: The opinion does not state whether or not the mother was pro se, or whether the mother’s counsel, if any, was provided with a copy of the report.

The Second Department also agreed with the determination to admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.

In that regard, the Second Department cited the First Department’s 2016 opinion in Strauss v. Strauss, 136 A.D.3d 419, 24 N.Y.S.3d 76, affirming Supreme Court New York County Justice Deborah A. Kaplan’s decision on a pre-hearing motion by the father not to exclude the forensic report from evidence. There, as to the hearsay issue, the First Department noted that the forensic report did not rely to a significant extent on hearsay statements. Rather the primary source of the report’s conclusions were the forensic evaluator’s firsthand interviews with the parties.

However, the court in Strauss also noted that the father intended to call as witnesses at any future custody hearing anyone to whom the forensic evaluator spoke. Thus, the declarants would then be subject to cross-examination, rendering admissible any opinion evidence based on their statements. On that issue, the First Department cited to the Second Department’s 2002 decision in Wagman v. Bradshaw, 292 A.D.2d 84, 739 N.Y.S.2d 42. In Wagman, the court held:

It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.

The First Department in Strauss noted that to the extent that any hearsay declarants were not cross-examined, the motion court had acknowledged that those portions of the report containing inadmissible hearsay should be stricken or not relied upon.

The Second Department in Raymond did not address this issue of striking the portions of the report based on statements of nontestifying declarants. Again, in Raymond, the decision was made after the hearing, and not on a pre-hearing motion to exclude.

Query: Was a copy of the report contained in the Record on Appeal and/or did the parties then receive a copy for the appeal?

David Laniado, of Cedarhurst, NY, represented the father. Melissa C. R. Chernosky, of Jamaica, represented the mother. Rachel J. Stanton and Diana Aragundi, of counsel to Janet Neustaetter, of Brooklyn, served as Attorney for the Child.