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Thursday, June 05, 2008

Error to Decide Custody Without Forensic Report Where Conflicting Testimony

Error to Decide Custody Without Forensic Report Where Conflicting Testimony Regarding Parties Conduct, and Evidence Suggesting Children Exhibiting Behavioral Problems

In Ekstra v Ekstra, --- N.Y.S.2d ----, 2008 WL 669895 (N.Y.A.D. 2 Dept.) Supreme Court appointed psychologist Lobel as a neutral forensic expert to conduct evaluations and submit a written forensic report on the custody issue. The appointment order provided that "[t]he neutral forensic evaluator's final report shall be admitted as evidence-in-chief without the necessity for independent foundation testimony or evidence, pursuant to 22 NYCRR 202.16(g)." The order further provided that "[a]ny party who wishes to cross-examine the neutral [forensic] evaluator, as permitted by the Uniform Rules, shall bear the cost of the neutral [forensic] evaluator's services in preparing such testimony, travel and testifying unless the Court directs otherwise." After Dr. Lobel's report was submitted, the father's counsel expressed an intention to cross-examine him and asked the court whether the father would be required to bear the costs of his appearance. The court responded that the father would not be required to bear that expense, but made no other provision for payment. As a consequence of not receiving his fee, Lobel did not appear, and the court granted the father's application to preclude the forensic report. Relying largely on its evaluation of the credibility of the witnesses, the court awarded sole custody of the parties' two children to the father. The Appellate Division reversed. It held that the in light of the sharply conflicting testimony regarding the conduct of the parties, and evidence suggesting that the children were exhibiting behavioral problems, the court should not have rendered a custody determination without first receiving the report of the neutral forensic expert it had appointed. Moreover, inasmuch as the father had the right to cross-examine the expert (see 22 NYCRR 202.16[g][2] ), and the expert could not have been compelled to testify without appropriate compensation the court should have made provision for payment to Lobel as it indicated that it would in the order appointing him. It reversed and remitted the matter to the Supreme Court, to reopen the custody hearing, at which time Lobel's report should be received in evidence and, should either party wish to cross-examine him, the court should make provision for the payment of his fee and expenses in accordance with the order appointing him.

1 comment:

  1. Anonymous11:17 AM

    Your comment is incorrect!

    The Judge did do his job as he saw best. Judge said number of times that the forensic would be the "courts witness" and that both will not be paying the forensic plus Judge gave the forensic planty time to show up in court even after 4 direct orders from the court and put of the trial for a month , basicly the forensic wanted to extort more fee's from the partys as he did during the evaluations stopping it for additional fee's "Not as the original Court Order stated" forensic had no right to stop his work because of fee's. The law gaurdian has lied to the Appellate Court/Judges that the father had not put the children to school which in fact the father did the law gaurdian was just neverdid his job to check with the school it seem that he was favoring the mother from his conduct with regards to this case. It was proven in multiple courts that the mother has "no credibility" as to her baseless/false aligations of lieing to and putting up the children to lie about their father a case of "Peranting Alianation"
    Now that Lobel has given his testimony the proof was in his notes which the court ordered him to turn over that he favored the mothers side by switching the test results as to make the father look as he had number of problems
    in fact it was the mothers test results (that Lobel covered up) showed she had number of mental issues.
    Its a real shame that a law gaurdian is not doing his job.