In Child Custody Dispute Prominent Physician Arrested For Allegedly Stealing Forensic Report

There is no question that equal access to the courts is essential to the fair administration of justice.  Whether it’s filing an initial petition, demanding a speedy trial, or gaining access to court records, all persons should be afforded equal opportunity.   This may be self-evident to some, but in the murky arena of child custody litigation it is far from common practice.  Rules concerning access to child custody forensic evaluations vary widely by jurisdiction, by county and even from one judge to another in the same county, with restrictions against copying and removing the report from the courtroom imposed upon self-represented persons.

This past week, Dr. Eric Braverman, a prominent Manhattan neurosurgeon who is representing himself in a contested custody case, was arrested in the courtroom hallway and charged with tampering with public records in the second degree and criminal contempt, for allegedly attempting to take a forensic report from the courtroom.  The charges stem from the order imposed by Justice Deborah Kaplan restricting Dr. Braverman to reviewing the report inside the courtroom only and further requiring that he not remove or copy it.  Dr. Braverman was visiting the courtroom and reviewing the report (assisted by an attorney who had not formally appeared in the case), when the attorney was allegedly seen putting the report in her bag by the supervising court clerk.

Dr. Braverman and his attorney-assistant had good reason to want the report.  A forensic report is prepared by a forensic psychologist to assist the court in a custody case.  It provides psychological profiles of the parties utilizing psychometric tests (MMPI and MCMI are commonly employed) along with extensive interviews and collateral source contacts for the purpose of making recommendations to the court as to which of the parties is the more fit custodial parent.  Not surprisingly, it holds a lot of weight at trial and in settlement negotiations.  It’s not only a big deal, but it’s also a big document, typically 50 or more pages, and is difficult to review and absorb, much less analyze for cross examination, in a single sitting while being watched over by often-impatient court personnel.

Anyone in Dr. Braverman’s position would want to review the forensic report more closely than an hour or so in a courtroom would allow. Regardless of whom the report favors, the report as well as the underlying data upon which it is based (raw test scores, interview notes, etc.) must be reviewed carefully to prepare for trial.   Reports can contain mistakes and generalizations, and can reach conclusions that are unsupported or even contradicted by the data.  Only the individual parties are in a position to assess the factual content of the report.

Which is why rules that restrict unrepresented parties from obtaining copies of forensic reports are so unfair.  Parties who are represented by attorneys fair better – usually the attorney is at least allowed to remove a copy from the courtroom.  But even then, judges will often restrict the attorney from showing, and sometimes from even discussing the report with the client.  The fear animating these rules is that exposing statements made by the parties’ children in confidence to the forensic psychologist would undermine the forensic process and harm children if they realized their parents know what they said; also, litigants might post personal content online or elsewhere just to hurt the other party.

Recent legislation introduced by NY Assemblywoman Helen Weinstein (Bill No. AO8342) aims to ensure greater access to forensic reports by both attorneys and the litigating public, while providing enforcement measures designed to curtail abuse.  The bill provides that “any report prepared by the forensic evaluator shall be confidential and under seal except that all parties, their attorneys and the attorney for the child shall have a right to a copy of the forensic report as well as copy of the forensic evaluator’s file, including supporting records and data.”  The bill also proposes to protect the litigants and their children from abuse by directing courts to issue protective orders imposing restrictions on republishing and distributing the reports, and provides a mechanism where courts can punish a delinquent party with contempt of court.

Many efforts have been made over the years to better regulate the forensic process in custody matters.  This one hits the mark.  Contact your state representative to voice your support.

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