Socialudvalget 2022-23 (2. samling)
SOU Alm.del Bilag 209
Offentligt
REPORT OF THE BLUE-RIBBON COMMISSION
ON FORENSIC CUSTODY EVALUATIONS
Delivered to Governor Kathy Hochul
December 2021
INTRODUCTION ....................................................................................................................... 2
THE COMMISSION PROCESS ................................................................................................ 2
SUMMARY OF THE COMMISSION’S CONCLUSIONS .......................................................... 3
PREVAILING QUESTION FOR CONSIDERATION: POSSIBLE LEGISLATION TO
ELIMINATE FORENSIC CUSTODY EVALUATIONS .............................................................. 4
RECOMMENDATIONS TO THE GOVERNOR FOR ACTION VIA STATUTE, REGULATION
OR APPROPRIATION .............................................................................................................. 6
Recommendation 1: Propose Legislation Limiting the Use and Scope of Forensic
Custody Evaluations ........................................................................................................... 6
Recommendation 2: Ensure Mental Health Evaluations are Ordered Equitably,
without Regard to the Income Level of Litigants ............................................................. 8
Recommendation 3: Create a Forensic Evaluator Certification Committee through
Legislation or Judiciary Administrative Action ................................................................ 8
Recommendation 4: Introduce Legislation to Mandate Training of Forensic Custody
Evaluators ............................................................................................................................ 9
Recommendation 5: Expand the Availability of Discovery in Child Custody Cases by
Enacting Legislation and Providing Resources to Parties ............................................ 10
Recommendation 6: Propose Legislation that Mandates Disclosure of Conflict of
Interest in Selection of Evaluators ................................................................................... 11
Recommendation 7: Advance Legislation to Establish Equitable Access to Reports 11
Recommendation 8: Develop Accountability Processes, Including Passing
Legislation that Eliminates Evaluators’ Quasi-Judicial Immunity ................................ 12
Recommendation 9: Establish a Process to Further Assess Use of Virtual
Technology ........................................................................................................................ 13
Recommendation 10: Reclassification of Forensic Evaluators as “Qualified Mental
Health Evaluators” ............................................................................................................ 14
Recommendation 11: Increase Resources for the Family Courts ................................ 14
MEMBERS OF THE BLUE-RIBBON COMMISSION ON FORENSIC CUSTODY
EVALUATIONS ...................................................................................................................... 15
REFERENCES ........................................................................................................................ 16
1
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
INTRODUCTION
Announced in the 2021 State of the State and convened in June 2021, the Governor’s
Blue-Ribbon Commission on Forensic Custody Evaluations
(“the Commission”)
was charged with providing recommendations to the Governor regarding if and/or how
forensic custody evaluations should be used by New York courts. New York State
convened the Commission after hearing from parents, attorneys, and other court actors
who reported negative experiences with forensic custody evaluators.
In the New York State courts, judges order and rely on forensic evaluations for some
cases involving child custody and parenting time. Statewide, there is no consistent
approach regarding if and/or when evaluations are ordered, who may act as a forensic
custody evaluator, how evaluators should conduct these evaluations, or how
incompetent or unethical evaluations may be subject to review. While there are
longstanding certification, credentialing, training, and accountability processes in place
for the courts in the boroughs of New York City and the surrounding counties
composing the First and Second Appellate Divisions of the New York State Judiciary,
these do not extend upstate.
The Commission is co-chaired by the Honorable Sherry Klein Heitler (Ret.), former
Chief of Policy and Planning for the New York State Unified Court System and Justice
of the Supreme Court of the State of New York, Commissioner Sheila Poole of the
Office of Children and Family Services, and Office for the Prevention of Domestic
Violence Executive Director Kelli Owens. The members of the Commission include
former judges, academics, attorneys who practice family and matrimonial law, children's
rights experts, domestic violence advocates, psychologists, and parents. Coming to this
work from different perspectives and committing to make a good faith effort to address
this important issue, the Commission members gave generously of their time, energy,
and expertise in developing recommendations for the Governor.
THE COMMISSION PROCESS
Among the matters considered by the Commission:
•
If forensic custody evaluations should be ordered by the courts at all, and if so,
under what circumstances;
2
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
•
•
•
•
•
•
•
How to standardize the evaluation process;
How reports should be used by the courts;
How to ensure equity regarding the availability and conduct of forensic
evaluations among all parties;
How to standardize access to reports for parties and attorneys;
Necessary qualifications, training, and oversight of evaluators;
Possible certification processes for evaluators; and
How to address bias in the system.
The Commission members undertook a significant amount of work in a limited
timeframe. To efficiently and productively address these issues, the Commission formed
three subcommittees
to focus on issues pertaining to:
1) the use of forensic
evaluations within the court process; 2) potential training and certification
requirements for forensic evaluators; and 3) bias within the system.
Each
subcommittee embraced its charge to study its particular area in a comprehensive
manner, given the profound and permanently life-changing impact forensic custody
evaluations have on many children and parents in New York State. Members engaged
in hours of thoughtful debate and reviewed numerous research articles from multiple
disciplines (see appendix of references).
The full Commission met monthly through the summer and fall of 2021, and also held
two virtual listening sessions that were open to the public. Deep consideration was
given to the public statements provided to Commission members by parents, children,
forensic evaluators, attorneys and advocacy organizations about the challenges and
inequities of the current forensic evaluation process, the costs of such evaluations, and
the difficulties holding forensic evaluators accountable.
SUMMARY OF THE COMMISSION’S CONCLUSIONS
The State charged the Commission with examining the well-documented flaws in
forensic custody evaluations. There are systemic biases and inequities, however, in the
overall justice process that go beyond this singular issue, and to address those would
be outside the Commission’s mandate. Custody cases in New York are heard in the
state’s supreme and family courts. Only supreme courts can hear divorces, and both
courts have jurisdiction over custody, visitation, orders of protection and other matters.
The majority of custody cases are heard in the family courts, which are under-
resourced. As a result, family courts have extraordinarily high case dockets, long delays
in cases being adjudicated, and a dearth of available court-appointed counsel for those
financially unable to afford private attorneys. These fundamental issues
3
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
disproportionately impact low-income New Yorkers, especially people of color and
immigrants. These larger issues are not addressed in this report but offer important
context for the recommendations.
Ultimately, the Commission members agree that some New York judges order forensic
evaluations too frequently and often place undue reliance upon them. Judges order
forensic evaluations to provide relevant information regarding the “best interest of the
child(ren),” and some go far beyond an assessment of whether either party has a
mental health condition that has affected their parental behavior. In their analysis,
evaluators may rely on principles and methodologies of dubious validity. In some
custody cases, because of lack of evidence or the inability of parties to pay for
expensive challenges of an evaluation, defective reports can thus escape meaningful
scrutiny and are often accepted by the court, with potentially disastrous consequences
for the parents and children. Commission members recognize that this Commission was
established in the hope of preventing such tragic occurrences in the future. As it
currently exists, the process is fraught with bias, inequity, and a statewide lack of
standards, and allows for discrimination and violations of due process.
The Commission developed a number of robust and important recommendations that
address the need to reconsider the role of evaluations and the situations in which they
are ordered. All members support efforts to improve training, ethics, and accountability
for evaluators, and introduce more equity into the process. Those recommendations are
presented in-depth in the “Recommendations to the Governor” section. The
Commission also debated the question of eliminating forensic custody evaluations,
either permanently or as a temporary measure as reforms are put into place. The facets
of that discussion are presented below.
PREVAILING QUESTION FOR CONSIDERATION: POSSIBLE
LEGISLATION TO ELIMINATE FORENSIC CUSTODY
EVALUATIONS
After a review of research, reflection, and discussion, the Commission agrees that
changes should be made to the current environment when custody evaluations are
ordered; however, the members could not reach uniform consensus on whether forensic
custody evaluations should continue to exist within the court system.
By an 11-9 margin, a majority of Commission members favor elimination of forensic
custody evaluations entirely, arguing that these reports are biased and harmful to
children and lack scientific or legal value. At worst, evaluations can be dangerous,
4
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
2749251_0005.png
particularly in situations of domestic violence or child abuse – there have been several
cases of children in New York who were murdered by a parent who received custody
following an evaluation. These members reached the conclusion that the practice is
beyond reform and that no amount of training for courts, forensic evaluators and/or
other court personnel will successfully fix the bias, inequity and conflict of interest issues
that exist within the system. These arguments are not new; calls for elimination of
forensic custody evaluations have been published by multiple scholars and experts over
the past two decades. These members note that even with the removal of these
evaluations, the court system will be able to adjudicate custody matters based upon the
normal processes and procedures for hearing evidence and determining facts in a
manner that affords parents and children due process protections. Should the Governor
decide to accept the recommendation to eliminate forensic evaluations going forward,
legislative action will be required.
Another significant group of Commission members believe that forensic custody
evaluations should continue within the court systems, but flaws with the current practice
must be addressed with the reform measures discussed by the Commission and
detailed below, such as better training and accountability practices. These members
argue that custody litigants may present serious mental health issues, and that judges
need to understand these issues to determine the custodial arrangement in a child’s
best interest. They note that preventing judges from hearing expert evidence on mental
health and parenting dynamics will not serve the best interests of children, and believe
the state can take steps to make improvements while continuing to allow judges to order
evaluations under more narrow circumstances. Without neutral evaluators, parties with
financial means will engage in a battle of the experts while parties with limited means
will be unable to present relevant mental health evidence. They note judges and
lawyers have little to no professional training in understanding family dynamics better
known to behavioral health practitioners. There are also concerns that eliminating the
forensic custody evaluation process confines victims of domestic violence to the
forensic trauma and chilling effect of telling their story on the stand, which may also
increase risk to survivors.
Some of the Commission members who support eliminating forensic evaluations as
they are currently performed recommend that the court increase reliance and expand
the role of local mental health service providers to perform targeted mental health
assessments where forensics would otherwise have been needed. Currently in many
jurisdictions, local mental health service providers only play that role in situations in
which the parties lack the resources to pay for a forensic evaluation. Some on the
Commission, however, argue that a mental health evaluation is not an appropriate
replacement for forensic evaluations, and that such evaluations would likely work
against the victims of abuse and domestic violence. They note that an exclusive
reliance on other kinds of mental health professionals will present significant limitations,
5
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
as a diagnosis, or lack of one, does not conclusively determine parenting abilities. For
domestic violence survivors, these limited tests could do more harm than good and thus
place families and children at greater risk. They contend that preventing judges from
hearing expert evidence on parenting ability and children’s best interests will not serve
children, and believe that the state can take steps to make improvements (e.g., training
requirements and enhancement of statewide accountability practices) while continuing
to allow judges to order evaluations under more narrow circumstances and forensic
custody evaluators to practice in the meantime.
In the absence of unanimity regarding the elimination of forensic evaluations,
Commission members also considered whether to recommend an immediate
moratorium on custody evaluations until significant reforms could be enacted and
funded. A more significant majority, though not all, of the Commission members agree
with this approach. Should a temporary moratorium be established, Commission
members urge Governor Hochul to maintain the moratorium until such time as all the
Commission’s recommended reforms are fully implemented. Any proposed moratorium
would require a timeline and set parameters, and there is disagreement regarding how
effective these proposed reforms may be, particularly if only some and not all are
implemented.
RECOMMENDATIONS TO THE GOVERNOR FOR ACTION VIA
STATUTE, REGULATION OR APPROPRIATION
Despite the wide range of views regarding whether to eliminate, temporarily halt, or
continue forensic evaluations, Commission members agree that if forensic custody
evaluations are to continue then the state must implement much-needed reforms. The
Commission offers these recommendations as a potential reform package. The
Commission recognizes that implementation of this package will take time and that
some recommendations will require a significant financial commitment by New York
State.
Recommendation 1: Propose Legislation Limiting the Use and Scope
of Forensic Custody Evaluations
A majority of Commission members support limiting the use and scope of forensic
custody evaluations to those cases where they are necessary to assess a parent’s
mental health, as it affects their behavior as a parent. These members recommend
evaluations only be ordered when all parties agree there is a need. Judges should not
order forensic evaluations for the purposes of finding out “what is really going on”,
6
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
obtaining an outside professional opinion on parenting access, or general information
gathering or data collection.
In addition to limiting the scope of evaluations, the majority of members felt forensic
evaluators should not be called upon to assess allegations of intimate partner violence
or other forms of family abuse, or allegations that one parent is distancing a child or
children from the other parent. Both are questions of fact that should be determined by
the judge based on the evidence presented at trial. If a judge deems specialized
expertise to be essential in order to accurately interpret the facts, especially related to
family abuse, and such expert testimony is not proffered by either party, court
appointment of specialized experts is still permissible under this recommendation. Since
general forensic evaluators lack expertise in child sexual abuse, and often other forms
of abuse, they should never be relied on for such issues. Additional specialized issues
could include child sexual abuse, special education, developmental disabilities, or other
particular medical conditions. Access to such specialized experts would be more
equitable than the use of forensic evaluations, assuming parties are not required to pay
the fees of such experts and that the fees paid by the state for such expert testimony
are reasonable.
Others emphasize the critical importance of not limiting custody evaluators to mental
health evaluations. They are concerned that this will hamper evaluators’ ability to
thoroughly understand individual cases and will not be helpful to the judges without
information regarding family dynamics. Moreover, they are concerned that a misuse of
mental health evaluations could potentially backfire on victims of domestic violence
because research has shown that victims, but not perpetrators, score poorly on mental
health testing and evaluations. They also note that using mental health evaluations in
this context is a violation of psychologists’ ethical guidelines.
Commission members support legislation that would require any judge ordering an
evaluation to make findings in writing or on the record specifying the factors considered
in ordering a forensic evaluation in a particular case. In their reports, forensic custody
evaluators should be required to also provide a rationale for use of certain assessments
and approaches (e.g., psychological testing) and the limitations of such testing or
approaches. Particularly (but not only) when evaluations under this recommendation will
be limited to cases where there is concern about a party’s potential identified mental
disorder, these members believe evaluators should be prohibited from opining on
questions of fact, such as whether a family offense was committed, and from making
specific recommendations for custody or parenting time in their reports. Other members
believe it is responsible for evaluators to suggest parenting options to the court,
assuming those are based on logical reasons consistent with the facts of the case.
7
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Recommendation 2: Ensure Mental Health Evaluations are Ordered
Equitably, without Regard to the Income Level of Litigants
When appropriate and relevant to the proceedings, the parties should have equal ability
to request mental health evaluations, and judges should order such evaluations,
conducted by qualified mental health professionals regardless of income or ability to
pay. The number and availability of qualified mental health evaluators in the state must
be increased.
Currently, families of means typically pay out of pocket for forensic evaluations, with the
costs ranging from $4,000 to five or even six-figures. Although there is also a state-
funded process of compensating court-ordered custody evaluators under the auspices
of the court system currently operating, families of marginalized communities and/or
low-income families are instead ordered into the child protective system (which already
over-represents children and families of color and many living in poverty) where they
are required to cooperate with an “investigation” pursuant to FCA §1034/§255. The
Commission is troubled by the child welfare intervention for poorer families and believe
these investigations create inequality of resources and procedures across income
levels. All members of the commission support increasing resources for mental health
evaluations, to cover the costs for poorer families, without forcing them into the child
welfare system.
Recommendation 3: Create a Forensic Evaluator Certification
Committee through Legislation or Judiciary Administrative Action
The Commission unanimously recommends that a standing, statewide Forensic
Evaluator Certification Committee (“FECC”) be established to review and approve or
deny applications of psychiatrists, psychologists and social workers seeking to serve as
forensic custody evaluators throughout New York State.
The FECC would be responsible for: (1) maintaining a list of approved, trained forensic
custody evaluators in each department; (2) creating a system to recertify forensic
custody evaluators on a regular basis; (3) ensuring comprehensive and scientifically
based training; (4) creating best practices for forensic custody evaluators during various
stages of the forensic evaluation; (5) creating a transparent, accessible, statewide
complaint process for parents, attorneys, judges, and other court personnel to raise
concerns about an individual forensic custody evaluator, educate stakeholders on how
8
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
to lodge a formal complaint, and provide notice to complainants when investigations
have been concluded and the results of the investigation; and, (6) ensuring that an
immediate and thorough review occurs for those cases in which a fatality or serious
injury occurs to a child or parent during or after the forensic report is made, including
identification of the scope of these investigations.
The Commission notes that such a committee would, however, be impeded in its ability
to approve and certify evaluators if evaluators are not also mandated to receive training
on the key issues the Commission identified as problem areas.
Recommendation 4: Introduce Legislation to Mandate Training of
Forensic Custody Evaluators
The Commission unanimously recommends that mandatory and ongoing trainings for
qualified mental health evaluators be established. Such trainings must cover topics
related to the history of forensic evaluations, best practices in forensic evaluations,
implicit and explicit bias, domestic violence and intimate partner violence, child abuse,
child sexual abuse, substance abuse, coercive control, and trauma. In addition, the
state should establish a “blind'' regular peer review process, as well as a rigorous
quality assurance review program to ensure that professional standards are followed as
an additional safeguard against bias.
Evaluators should receive no less than 36 hours of basic training. Continuing Education
(“CE”) credit should be offered for these trainings, whenever practicable, however the
trainings should commence without delay.
A standing committee composed of mental health, legal, domestic violence and child
abuse experts should be created to produce a uniform, statewide training curriculum
based on scientifically based methods and materials. The individuals seeking to serve
as forensic custody evaluators in New York State would complete this training prior to
applying to become certified by the FECC to serve. The standing training committee,
upon completing the development of a training program, may be converted to a
Training, Curriculum and Guidelines Committee (“TCGC”) that will work under the
auspices and supervision of the FECC. The TCGC would be comprised of forensic
evaluators, attorneys, judges, experts in domestic violence, child abuse and child sexual
abuse, and parents/survivors. The TCGC would meet regularly to review the training
curricula and update accordingly.
9
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Recommendation 5: Expand the Availability of Discovery in Child
Custody Cases by Enacting Legislation and Providing Resources to
Parties
Pretrial disclosure pursuant to Civil Practice Laws and Rules (“CPLR”) Article 31 should
be permitted on a statewide basis in child custody cases, with some specific exceptions.
Currently, because custody proceedings are special proceedings, CPLR Article 31 does
not automatically apply. Attorneys must request and obtain court permission to engage
in discovery, which occurs routinely in the Third and Fourth Departments. When there
are issues of domestic violence, sex abuse or child sexual abuse, the court typically
hears arguments about limiting discovery. The court often issues scheduling orders with
discovery schedules, assuming discovery will occur. Conversely, in the First and
Second Departments, requests for discovery in custody proceedings are not made due
to case law prohibitions.
Employing the use of pre-trial discovery statewide may significantly reduce judges’ use
of forensic evaluation, which is currently relied upon as a means of gathering
information. Discovery could provide an alternative and fairer means of gathering
evidence which comports with due process, permitting the judge and counsel to
determine the facts of the case or analyze evidence that does not pertain to mental
health issues.
Even though discovery can have advantages, Commission members understand that
the unfettered use of discovery can also be a tool for abusive partners to engage in
litigation abuse (i.e., use the litigation itself as an opportunity to further harass and
intimidate). There should be a presumption against depositions and interrogatories in
cases involving intimate partner violence. In the under-resourced family courts, where
many litigants are self-represented or are appointed counsel with huge caseloads and
little out of court case preparation time available, time-consuming pretrial discovery,
including depositions and interrogatories, is also not viable. In fact, it is seldom used in
upstate low-income cases. If discovery is mandated early in the litigation, the judge
should issue an order that specifically describes the scope of discovery to be conducted
in that case, and should consider court oversight, for instance by being the repository
for sensitive case materials.
Materials should also be developed and made available to all litigants
pro se
to explain
how to navigate the discovery process. Additional financial resources should be
provided for all assigned counsel (both counsel for parents and attorneys for children)
so that counsel will be able to handle the increase in the workload that discovery will
require.
Among other steps, the state should
increase funding for institutional providers
10
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
that represent parents and children and increase the state’s rate of pay for court-
appointed counsel and Attorneys for Children (which is currently statutorily mandated at
significantly below market at $75/hour).
Recommendation 6: Propose Legislation that Mandates Disclosure of
Conflict of Interest in Selection of Evaluators
In response to reports of conflicts of interest, particularly the impact of the substantial
fees for custody evaluations on some professionals’ livelihoods, evaluators should be
required to disclose: a) past or concurrent referrals by attorneys, judges, Attorneys for
Children, or other professionals involved in the case for other evaluations, or other
professional appointments; b) professional and/or personal interactions outside of court;
business dealings/interactions; c) donations to campaigns. If such disclosures result in a
litigant or attorney objecting to the candidate working on the case, the judge should not
select that evaluator for the case.
When forensic evaluations are ordered by a judge, all litigants should be provided with
pertinent information. That information should include the goals of the forensic
evaluation, the roles and responsibilities of the evaluator, the time frame, the litigants’
rights with respect to the evaluation (noting that litigants have the ability to object via
court processes to a forensic evaluation or to the selection of a particular forensic
evaluator), and the process for lodging complaints about an evaluator.
Recommendation 7: Advance Legislation to Establish Equitable
Access to Reports
There is inconsistency in how and to whom forensic custody reports are provided. In the
Commission’s public listening sessions, many parents and survivors of abuse provided
testimony about how their inability to access and/or carefully review their forensic report
impaired their ability to challenge the conclusions of the report in court, or to make
counsel aware of the flaws and inadequacies in the report. Several also commented
about the exorbitant costs of obtaining such reports.
Commission members agree that the inability to access these reports and the
underlying data created fundamental due process, fairness, and equal justice issues,
requiring immediate action. A group of Commission members believes that each party
and litigant should be provided with his or her own copy of the forensic report, file, and
underlying data, which they would then be able to share with their retained experts and
consultants.
11
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Other Commission members support providing parties and counsel access to the
reports, but do not support providing physical copies of the reports to litigants. Many
Commission members raised safety and privacy protection concerns related to this
recommendation. They stress the need for adequate safeguards such as redacting
names and addresses from the evaluation, report, and accompanying file before sharing
it with litigants and counsel, especially in instances where confidentiality orders and
orders of protection are in place. Judges should issue orders prohibiting the sharing of
this confidential information and should have discretion to impose case-specific
conditions and/or limits on public dissemination of information in the reports. There was
also a request to redact sections that include what a child disclosed to the evaluator, as
allowing the parties to see this may endanger the child.
Recommendation 8: Develop Accountability Processes, Including
Passing Legislation that Eliminates Evaluators’ Quasi-Judicial
Immunity
Most of the members of the Commission agree with the need for the elimination of
quasi-judicial immunity. Currently, when parents and attorneys believe unethical, biased
or incompetent evaluators have victimized them or their children, there is no well-known
avenue to have their grievances addressed. In the First and Second Departments, a
process overseen by the Office of Court Administration exists to have the evaluator
removed from a panel where the evaluator is appointed, but parents are often not given
information about it and do not know how to pursue it. The Commission suggests this
be rectified with information about every aspect of the process provided in writing to all
litigants.
The relevant statutes should be amended to (a) explicitly require the Office of
Professional Development of the State Department of Education (OPD) to investigate
such complaints as fully as any other complaints filed, while maintaining confidentiality
of court documents reviewed; and (b) require the court overseeing the custody matter to
provide any information or material requested by OPD to allow the investigation to
proceed unimpeded to conclusion.
Because OPD reviews forensic evaluators’ licenses, a minority of the Commission is
concerned that unlike the process that exists in the First and Second Departments
overseen by the Office of Court Administration, in the Third and Fourth Departments a
process that permits a review of the evaluators but does not affect their professional
licenses does not exist. These members recommend that all state litigants, counsel,
judges and forensic evaluators should be able to lodge complaints about a forensic
12
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
evaluator’s performance and limit the ability of a forensic evaluator to conduct
evaluations in the future, without necessarily jeopardizing their professional license.
Some members of the Commission argue that this function should be removed from
OPD entirely and be overseen by another entity.
A majority of Commission members believe that as common law effectively prohibits
civil action against evaluators, a cocoon of quasi-judicial immunity impedes evaluator
accountability. They recommend legislation be enacted eliminating such quasi-judicial
immunity so that evaluators may be subject to civil liability where their conduct gives
rise to a cognizable cause of action.
Those who oppose it argue the very nature of custody evaluations will often cause
intense reactions from parents angered by the findings in the report and could lead to
retaliatory civil litigations against the evaluator. The decertification process discussed
above will provide adequate protection against harmful evaluators without scaring good
evaluators from serving in this role.
Recommendation 9: Establish a Process to Further Assess Use of
Virtual Technology
There should be further study to consider issues such as the ethics of virtual
evaluations, the lack of home visits, access to technology, quality of internet, safety
protocols, and confidentiality. Commission members identified several potential
advantages to using virtual technology for forensic evaluations. Virtual evaluations could
enable downstate forensic evaluators to be used in upstate cases, thereby increasing
the number of forensic evaluators available in upstate communities underserved by
behavioral health practitioners. Many victims of intimate partner violence may feel more
comfortable being interviewed via a virtual platform. Further, litigants may be able to
participate in virtual proceedings without the attendant costs of lost pay or day care
necessitated by in court proceedings.
However, concerns have been raised about the ability of abusers to manipulate their
partners or children off screen and outside the view of the forensic evaluator. Litigants
who lack access to technology may only be able to access public spaces like libraries
and coffee shops for virtual interviews, a significant invasion of privacy. Only some
courts are providing computers with internet access in private spaces at the courthouse
or other public buildings, and that should be considered in any study.
13
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Recommendation 10: Reclassification of Forensic Evaluators as
“Qualified Mental Health Evaluators”
Most Commission members support statutorily reclassifying forensic evaluators as
Qualified Mental Health Evaluators so there is a clear understanding by the parties,
attorneys, and the court of their role. The use of the term “forensic” in connection with
the term “evaluator” creates an underlying assumption that the forensic evaluator’s role
is to investigate and solve the issues before him/her/them and to present the answer to
the court. But it is the role of the court, not the evaluator, therefore the name used for
appointed mental health experts should convey the limits of their roles.
One member supports this reclassification but also feels there should be a specific
definition included that explains the scope of the “Qualified Mental Health Professional”
role. Others on the Commission felt that this classification would be misleading as this
violates “best practice” and the work of the forensic evaluator is not, nor can ever be a
diagnosis or a mental health evaluation.
Recommendation 11: Increase Resources for the Family Courts
As discussed in the introduction, the family courts, where most child custody cases are
litigated, are among the least-resourced courts in the state despite the life-and-death
nature of the critical issues are adjudicated there. While the narrow focus of this
Commission was dedicated to forensic evaluations, the Commission hopes for an
overall investment in the family courts to address these issues and the
recommendations laid out above.
14
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
MEMBERS OF THE BLUE-RIBBON COMMISSION ON
FORENSIC CUSTODY EVALUATIONS
Chairs
•
Hon. Sherry Klein Heitler, Retired, Former Chief of Policy and Planning for the
New York State Unified Court System and Justice of the Supreme Court of the
State of New York
Kelli Owens, Executive Director, NYS Office for the Prevention of Domestic
Violence
Sheila Poole, Commissioner, NYS Office of Children and Family Services
•
•
Commission Members
•
•
•
•
•
•
•
•
•
•
Amie Barnes, Executive Director, Seven Dancers Coalition
Jaya Connors, Assistant Professor of Law and Director of Field Placement Clinic,
Albany Law School
Hon. Laura E. Drager, Retired, Manhattan Supreme Court
Jacqueline Franchetti, Founder, Kyra's Champions
Jennifer Friedman, Director, Bronx and Manhattan Legal Project and Policy,
Sanctuary for Families
Joan Gerhardt, Director of Public Policy and Advocacy, New York State Coalition
Against Domestic Violence
Dr. Jerold Grodin, Director of Professional Affairs, New York State Psychological
Association
Leah Hill, Clinical Associate Professor of Law, Fordham University School of Law
Pei Fong Kuo, Parent and Survivor Advocate
Dr. Robin Lynch, Former Chair, Child Custody Evaluation Committee for the
Forensic Division of the New York State Psychological Association
15
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
•
•
•
•
•
•
•
Joan Meier, Professor of Clinical Law and Director of the National Family
Violence Law Center, George Washington University Law School
Hon. Janice M. Rosa, Retired, Erie County Supreme Court
Michael Scherz, Director of the Domestic Violence Project, Lawyers for Children
Lorraine R. Silverman, Partner, Copps DiPaola Silverman, PLLC
Dr. Carolyn Springer, Associate Professor of Psychology and Director of African,
Black and Caribbean Studies, Adelphi University
Timothy M. Tippins, Founder, MatLawSystems Corp.
Harriet Weinberger, Director, Office of Attorneys for Children at Supreme Court
of the State of New York, Appellate Division, Second Department
REFERENCES
22 NYCRR 623.
22 NYCRR 680.
Appellate Division First and Second Departments.
Mental Health Professionals Panel
Application.
Appellate Division First and Second Departments.
Judicial Evaluation of Forensic
Services.
Retrieved from
https://www.nycourts.gov/courts/ad2/pdf/2013%20Mental%20Health%20Professionals
%20Handbook.pdf
Appellate Division First and Second Departments.
Mental Health Professionals Panel
Application for Psychiatrist and Psychologist Without Forensic Custody Experience.
Appellate Division First and Second Departments.
Mental Health Professionals Panel
Application for Social Workers.
Appellate Division First and Second Departments.
Mental Health Professionals Panel
Re-certification Application 2021-2021 Psychiatrist/Psychologist.
Appellate Division First and Second Departments.
Mental Health Professionals Panel
Social Worker Re-certification Application.
Bragg, C., For
After children die, questions of standards and biases,
Times Union,
(June 1, 2020) - https://blog.timesunion.com/capitol/archives/290251/after-children-die-
questions-of-standards-and-biases/
16
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Bragg, C., For
A child's death in Schenectady draws scrutiny in Family Court,
Times
Union, (October 3, 2021), Available at https://www.timesunion.com/state/article/A-child-
s-death-in-Schenectady-draws-scrutiny-of-16496870.php
Breger, Melissa L.,
The (In)Visibility of Motherhood in Family Court Proceedings,
New
York University Review of Law & Social Change, Vol. 36, P. 555 (2012), Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2204680.
Conner, D. H.,
Back to the Drawing Board: Barriers to Joint Decision-making in Cases
Involving Intimate Partner Violence,
Duke Journal of Gender Law & Policy, 18, 223
(2011).
Davis, G.,
A Systematic Approach to Domestic Abuse–Informed Child Custody Decision
Making in Family Law Cases,
Family Court Review,
53(4),
565-577 (2015).
Davis, O’Sullivan, Susser and Fields,
Custody Evaluations When There are Allegations
of Domestic Violence: Practices, Beliefs, and Recommendations of Professional
Evaluators,
Final Report to Department of Justice, Award # 2007-WG-BX-0001 (May
2011).
Erickson & O’Sullivan,
Doing Our Best for New York’s Children: Custody Evaluations
When Domestic Violence is Alleged,
23:2 NY Psychologist 8-12 (2011).
Gordon, Anne D.,
Better Than Our Biases: Using Psychological Research to Inform Our
Approach to Inclusive, Effective Feedback,
27 Clinical Law Review 195, Duke Law
School Public Law &
Legal Theory Series No. 2021-z28 (2021), Available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777546.
Jeffries, S.,
In the Best Interests of the Abuser: Coercive Control, Child Custody
Proceedings, and the “Expert” Assessments that Guide Judicial Determinations,
Laws,
5(1),
14 (2016).
Keilitz, S. L., Davis, C. V., Flango, C. R., Garcia, V., Jones, A. M., Peterson, M., &
Spinozza, D. M.,
Domestic Violence and Child Custody Disputes: A Resource
Handbook for Judges and Court Managers,
Williamsburg, VA: National Center for State
Courts (1997).
Hill, Leah A.,
Do You See What I See – Reflections on How Bias Infiltrates the New
York City Family Court – The Case of the Court Ordered Investigation,
40 Colum. J.L. &
Soc. Probs. 527 (2007), Available at:
https://ir.lawnet.fordham.edu/faculty_scholarship/400.
Lovik, M. & Shiemke, R.,
Domestic Violence and Children’s Best Interests,
Michigan Bar
Journal (2014).
17
 SOU, Alm.del - 2022-23 (2. samling) - Bilag 209: Henvendelse af 23/7-23 fra Kenneth Nielsen om anmodning om foretræde om forældreansvarsloven
Lubit, R.,
Recognizing and Avoiding Bias to Improve Child Custody Evaluations:
Convergent Data are not Sufficient for Scientific Assessment,
Journal of Family Trauma,
Child Custody & Child Development, 18:3, 224-240, Available at:
https://doi.org/10.1080/26904586.2021.1901635
Matrimonial Practice Advisory and Rules Committee (2020).
A White Paper on Forensic
Evaluations in Custody Cases.
Meier, Joan S., et al.,
Child Custody Outcomes in Cases Involving Parental Alienation
and Abuse Allegations,
GWU Law School Public Law Research Paper No. 2019-56
(2019), Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3448062.
Sapien, J., For
New York Families in Custody Fights, a ‘Black Hole’ of Oversight,
ProPublica, (March 7, 2017), Available at https://www.propublica.org/article/for-new-
york-families-in-custody-fights-a-black-hole-of-oversight.
Saunders, D.G. & Browne, A., Intimate Partner Homicide. In R.T. Ammerman & M.
Hersen (Eds.),
Case Studies in Family Violence,
Kluwer Academic Publishers (2000),
Available at https://link.springer.com/chapter/10.1007%2F978-1-4615-4171-4_18.
Saunders et al,
Child Custody Evaluators’ Beliefs about Domestic Abuse Allegations:
Their Relationship to Evaluator Demographics, Background, Domestic Violence
Knowledge, and Custody-Visitation Recommendations,
Final Technical Report
Submitted to the National Institute of Justice (2011).
Stark, D.P., Choplin, J.M., & Wellard, S. (2019).
Properly Accounting for Domestic
Violence in Child Custody Cases: An Evidence-Based Analysis and Reform,
Mich. J.
Gender & L. (2019).
Tippins, T M, “Forensic Custody Reports: Where’s the Science,” NYLJ, 09-04-19.
Wisconsin Governor’s Council on Domestic Abuse & End Domestic Abuse Wisconsin,
Domestic Abuse Guidebook for Wisconsin Guardians Ad Litem: Addressing Custody,
Placement, and Safety Issues
(2017)
Working Group on Complex Divorces -- Multidisciplinary Collaboration,
It Won't Stop
Until You Protect the Victims: Complex Divorces and Suspicions/Allegations of
Domestic Violence,
CSMS Group, Netherlands (2019).
18