Recitation as required by CPLR 2219(a), of the papers considered in review of this Order to Show Cause:

PapersNumbered

Plaintiff's Order to Show Cause and exhibits1 -3, A-J

Defendant's Affidavit in Opposition and exhibits1, 1-3

Plaintiff's Reply Affidavit1

In this action for divorce and ancillary relief, the plaintiff-wife (hereinafter "wife") moves by Order to Show Cause for Orders:1) directing that the court-appointed forensic evaluator, Marvin J. Aronson, Ph.D., turn over to the wife and her counsel, his notes and test data thirty (30) days prior to trial; and, 2) awarding the wife interim counsel fees in the amount of $300,000 without prejudice to further application. This decision/order addresses only the wife's first application. A separate briefing schedule has been set with respect to the wife's application for interim counsel fees.

Background [*2]

As part of the resolution of the wife's order to show cause for custody and exclusive occupancy of the marital residence, this court, with the consent of the parties, appointed Marvin J. Aronson, Ph.D. to conduct a forensic evaluation of the parties and their two children, ages two and three. Dr. Aronson met with the parties and the children on twenty occasions and conducted twelve collateral interviews. He conducted psychological testing on the husband, and partial testing on the wife. His forensic report was sent to the court in January of this year. A custody and access trial has been scheduled for July 14, 15, 18, 19, 21, 22, 25, 26, 28 and 29, 2011.

The wife now seeks an order directing that Dr. Aronson produce his notes and test results in advance of the trial so that she can adequately prepare for his direct and cross-examination. She states that production of these documents prior to trial is particularly important sinceDr. Aronson has recently advised counsel that he will be available for only the first two trial dates. The wife offers no legal authority for the relief she is seeking; however, in support of her contention that she is entitled to this information, she refers in her reply papers to the 2006 report of the New York State Matrimonial Commission wherein the commission recommended that a forensic report be subject to all of the trial procedures which allow a party and counsel to probe the basis for the findings in a report.^[FN1]

The husband opposes the wife's application, arguing that the legal authority in this state "points to precisely the opposite result of the relief that plaintiff's (sic) seeks."

He also asserts that the release of this information could have a potentially harmful long-term effect on the parties' ability to effectively parent their children.

Conclusions of Law

In the First and Second Judicial Departments it is well established that discovery on custody matters, generally, is limited and this court is bound to follow that prohibition. (See AL v CK, 21 Misc 3d 933 [Sup Ct, Kings County, 2008, Sunshine, J.]; Garvin v Garvin, 162 AD2d 497 [2d Dept 1990]; Corsel v Corsel, 133 AD2d 604 [2d Dept 1987]; Ginsberg v Ginsberg, 104 AD2d 482 [2d Dept 1984]; Hunter v Hunter, 10 AD2d 291 [1st Dept 1960].) With respect specifically to the notes, raw data and test results of the court-appointed forensic evaluator, the courts have consistently held that "special circumstances" exist that support a limitation on discovery of these documents. (Drago v. Tishman Const. Corp. Of New York, 4 Misc 3d 354 [Sup Ct, New York County, 2004, Lebedeff, J.] quoting Ochs v Ochs, 193 Misc 2d 502, 506-509 [Sup Ct, Westchester County 2002, Spolzino, J.]; Nicholson v Nicholson, 2 Misc [*3]3d 1002[A], 2003 NY Slip Op 51713[U] [Sup Ct, Kings County 2003, Sunshine, J.]; see also, Feuerman v Feuerman, 112 Misc 2d 961 [Sup Ct, Nassau County 1982, McCaffrey, J.])

The court in Ochs v Ochs, supra at 506-07, in holding that a litigant is not entitled to pretrial disclosure of the notes, raw data and test results compiled by the court-appointed neutral forensic evaluator, explained its ruling thus:

If the process of custody litigation is to be successful, the court's concern for the "best interests of the children" must apply not only with respect to the result, but in the means used to reach that result, as well. Custody cases are difficult, at best, not merely because the correct result is often elusive, but also because the adversarial process that is most conducive to reaching the truth is often detrimental to the relationships it is intended to protect. Thus, while it is true that the court should exercise every means possible to ensure that it has all relevant information before making a custody determination (see, DeBlasio v DeBlasio, 187 AD2d 551 [2d Dept 1992]; Burgel v Burgel, 141 AD2d 215, 216 [2d Dept 1988]), the court must also be cognizant of the great burden that such litigation places on the parties and the children. The process should not be permitted to defeat, through an excess of zeal in discovering every last ounce of relevant information, the beneficial effects that are intended to be achieved in the result.

Moreover, as the court noted in Feuerman, supra, at 964, making available the raw data used by forensic experts in custody cases "would undermine the effectiveness of their services and recommendations, which experience has shown serves as a significant factor in bringing about amicable resolutions of many custody proceedings which, otherwise, would result in lengthy, emotional and traumatic trials." Therapists, cognizant of the fact that their data and notes will be scrutinized may be reluctant to write down the impressions they form of the parties during their interviews, "impressions that may not individually have a strong basis in evidence, but which may, after reflection, be a significant element of the mosaic that is reflected in the report." Ochs, supra at 509. Nevertheless, there are circumstances where disclosure such as is requested by the wife in this case is warranted and "the court is obligated to exercise its discretion in each case so as to balance the benefit to be achieved by permitting such disclosure against the detriment it causes." Ochs, supra at 509-10. Suchdisclosure, however, should only be permitted where there is evidence of special circumstances, including, for example, some deficiency in the report or evidence of potential bias. Ochs, supra at 510. As a general rule, disclosure is not warranted. Rather, the underlying basis of the court-appointed neutral forensic evaluator's report can be sufficiently explored through the process of cross-examination and rebuttal (see, Nicholson v Nicholson, supra, citing Ochs, citing Murtari v Murtari, 249 AD2d 960 [4th Dept 1998]).

The recommendation of the Matrimonial Commission does not change the law in this state. Per the Unified Court System's website, the Matrimonial Commission was established in 2004, by then-Chief Judge Judith S. Kaye, to examine the different facets of the divorce process in New York and recommend reforms as appropriate. In February 2006, the Commission submitted its report to Chief Judge Kaye, recommending changes in several areas, including the selection and education of judges, the appointment and regulation of neutral experts and law guardians, access to justice, and the administration of the legal process. [*4]

As wife's counsel notes, one of the recommended changes in the report issued by the Matrimonial Commission concerned the forensic report. Nevertheless, the Commission recognized that the changes it was recommending were at odds with the case law in this state. Indeed, some five years later, they still are.^[FN2]

Inasmuch as the court concludes that there are no special circumstances in this case which would cause the court to weigh in favor of disclosure of the requested notes and test results, the wife's application that Dr. Aronson turn over these items is denied. The wife shall have a full opportunity at trial to cross examine Dr. Aronson with regard to the data relied upon in reaching his determination.

Dr. Aronson, however, is directed to produce his notes and test results at the time of his testimony in the event that at that time there is a sufficient showing of bias or other reason that puts into question the credibility of his report.

Therefore, upon the facts presented and the applicable law, it is hereby:

ORDERED, that counsel for the defendant is directed to serve the within order, with Notice of Entry, within ten (10) days of entry, upon counsel for the plaintiff.

This constitutes the decision and order of the court. All further requested relief not specifically granted is denied.

ENTER

______________________________

HON. DEBORAH A. KAPLAN

J.S.C.