D.R. v R.R.

[*1] D.R. v R.R. 2009 NY Slip Op 52481(U) [25 Misc 3d 1238(A)] Decided on November 3, 2009 Family Court, New York County Hoffman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2009
Family Court, New York County

D.R., Petitioner,

against

R.R., Respondent.



V-14202-3/08



Steven M. Warshawsky, Esq., for R. R. (Mother)

William Herman, Esq., Rosenthal & Herman, P.C., for D. R. (Maternal Aunt)

Colleen Samuels, Esq., Law Guardian

R. Ellen Sigal, Esq., Law Guardian

Douglas E. Hoffman, J.

This matter comes before the Court upon motion by respondent R. R. for an order modifying prior orders of the Family Court dated December 23, 2008, and February 17, 2009, directing a forensic examination by Dr. Richard Oberfield and apportioning costs therefor. Through the instant motion, filed nine months after Family Court issued the original order directing a forensic examination, respondent seeks to have the Court bifurcate the forensic examinations by having the Court designate an alternative doctor as respondent's forensic examiner and having each party bear the costs of the forensic examiner who would be assigned to that party. Respondent also seeks an order prohibiting petitioner and her attorneys from communicating with respondent's court-appointed forensic examiner until after the final report concerning respondent has been submitted to the Court. The final branch of respondent's motion seeks an order extending the deadline for forwarding to opposing counsel copies of documents furnished to the forensic evaluator until five business days following submission of the final report to the Court.

Respondent's motion in essence seeks reargument of the December 23, 2008 order rendered by Hon. Jane Pearl, the former Presiding Judge in this matter, appointing Dr. Oberfield as the forensic examiner and directing the parties to submit to a forensic examination by Dr. Oberfield. The Court notes that on June 9, 2009, the Appellate Division, First Department, denied respondent's application for a stay of the prior Family Court orders and of these proceedings, as well as for leave to appeal those orders.

In part, respondent's motion may also be deemed one for renewal pursuant to C.P.L.R. [*2]section 2221, asserting changed circumstances, namely, that respondent's refusal to engage in the forensic examination by Dr. Oberfield over the past ten months may conceivably result in bias on the part of Dr. Oberfield against her. To the extent that the motion may be denominated as one for reargument, Judge Pearl is presently unavailable to hear that motion and this Court will address the motion. For the reasons stated below, the Court denies the motion in its entirety.

At the outset, the court notes that a forensic examination pursuant to Family Court Act Section 251 is warranted in this contested custody petition. Ekstra v. Ekstra, 49 AD3d 594, 854 NYS2d 439 (2d Dept. 2008); Womack v. Jackson, 30 AD3d 433, 815 NYS2d 486 (2d Dept. 2006). Respondent's mental health status is properly before the Court in this proceeding. Matter of Darlene T., 28 NY2d 391, 395, 271 NE2d 215, 322 NYS2d 231 (1971); Rosenblitt v. Rosenblitt, 107 AD2d 292, 486 NYS2d 741 (2d Dept. 1985). The Court is obligated to obtain independent evidence concerning whether or not extraordinary circumstances exist and, if so, what custody determination is in the best interests of each child. The forensic examination herein is not intended as a device to create evidence to prove extraordinary circumstances at this preliminary stage of the proceedings; rather, where, as here, petitioner has made a prima facie showing of extraordinary circumstances, the forensic examination may assist the Court by illuminating and clarifying issues already raised concerning extraordinary circumstances, including the nature and extent of any acknowledged mental health issue concerning a party to this proceeding and how such an issue may impact upon parental function. To be clear, petitioner still carries the burden of proving extraordinary circumstances at a de novo hearing prior to the Court reaching, if appropriate, a best interests analysis.

It is axiomatic that the forensic examiner should be a neutral, well-qualified expert appointed by the court, not selected by a particular party. See Armstrong v. Heilker, 47 AD3d 1104, 1106, 850 NYS2d 673 (3rd Dept. 2008) and citations therein. This does not prevent any party from retaining her own expert. In this case, Judge Pearl did not overlook controlling law or relevant facts in holding that a forensic expert was needed. As noted, the forensic examination would assist the court in determining at fact-finding whether extraordinary circumstances exist, see Bennett v. Jeffreys, 40 NY2d 543, 356 NE2d 277, 387 NYS2d 821 (1976), and, if appropriate, in determining what is in the best interests of each child.[FN1]

With respect to the selection of the forensic expert herein, Judge Pearl had her court attorney conduct a conference with the attorneys for the parties and for the children concerning selection of the specific forensic examiner. Had the attorneys agreed upon a qualified forensic examiner, the Court would have abided by that selection. As the attorneys could not agree, Judge Pearl presented a list of qualified forensic examiners and sought comment as to the propriety of selecting a particular examiner. This took place on December 22, 2008. Respondent, through counsel, declined to suggest a forensic examiner based upon respondent's stated position that appointment of an examiner was premature in the absence of a conclusive finding of extraordinary circumstances. Judge Pearl indicated that appointment of a forensic examiner was [*3]warranted where, as here, petitioner had set forth a prima facie showing of extraordinary circumstances. Following conference with the court attorney, the attorneys appeared before Judge Pearl and indicated no objection to the Court appointing Dr. Oberfield in particular as the forensic examiner. Judge Pearl entered an order on December 23, 2008, directing the forensic examination by Dr. Oberfield and requiring submission of a written report to the Court within 90 days.

Through an e-mail by respondent's former counsel, Phil Schiff, to Judge Pearl's court attorney dated December 28, 2008, with a copy to petitioner's former attorney, Howard Felcher, respondent first raised an objection to the selection of Dr. Oberfield in particular as the forensic examiner. Mr. Schiff wrote as follows: "My client just realized that the NYU Child Study Center, where Dr. Oberfield serves on the faculty, has had extensive involvement with this family, particularly D. R. She believes that Dr. Oberfield himself is likely to have had contact with the family. Due to these ethical concerns, I ask that a different evaluator be selected."

Petitioner's former counsel responded by e-mail to Judge Pearl's court attorney the next day, with copies of the e-mail to Mr. Schiff and to Marley Gonzalez, then the attorney for the subject children. In this e-mail, petitioner's counsel objected to Mr. Schiff's request. In pertinent part, Mr. Felcher wrote:

... Mr. Schiff also makes erroneous assertions, this time with respect to an assumed

yet non-existent conflict of interest in the appointment of Dr. Oberfield as the

forensic psychiatrist in this matter. Simply because Dr. Oberfield has an

affiliation with the NYU Child Study Center, which is a treatment center where

Petitioner together with Respondent and the children attended a handful of

sessions with a social worker and graduate social work students, does not in anyway

present a conflict of interest or even touch on any ethical considerations. Indeed,

contrary to Mr. Schiff's surmise, Petitioner has never met Dr. Oberfield, has never

heard his name before, nor has she had any contact with him or any psychiatrists

for that matter who are involved with the NYU Child Study Center. In fact, as

Respondent well knows, no psychiatrists were ever present during the sessions

attended by the parties ... Absent a specific showing of any direct contact or some

other familiarity by Dr. Oberfield with the parties or issues in this case, his

affiliation with the NYU Study Center does not serve as a basis for disqualification.

Moreover, Respondent has had Dr. Oberfield's name since December 1, 2008, when

the Court provided counsel with a list of potential experts, and she was again made

aware on December 22, 2008, that Dr. Oberfield could be a potential expert. On

December 28, 2008, after his selection, Respondent for the first time raises an alleged

conflict.

Mr. Felcher concluded by stating that respondent's "argument for Dr. Oberfield's disqualification based upon his alleged conflict is baseless in fact or in law and should not be granted." By e-mail the very next day to the court attorney, with a copy to Mr. Felcher, Mr. Schiff wrote: "My client has authorized me to withdraw our objection to the selection of Dr. Oberfield ..."

Not only did respondent expressly agree more than ten months ago to withdraw any objection to the appointment of Dr. Oberfield as the forensic examiner herein, but respondent's [*4]instant motion is devoid of any basis, other than unsupported speculation, for a court order essentially disqualifying Dr. Oberfield as the forensic examiner, as the course of action proposed by respondent in this matter would effectively eviscerate any possibility of Dr. Oberfield serving as a neutral forensic examiner for the Court. An effective forensic examination herein would require examination of both parties to the extent that the parties made themselves available for examination, and may well entail examination of the children. Petitioner has already met with Dr. Oberfield on three occasions pursuant to Judge Pearl's order. Respondent has declined to meet with Dr. Oberfield, occasioning a lengthy delay in resolution of this matter. It is this delay that respondent surmises would cause Dr. Oberfield, a respected forensic examiner, to be predisposed to support petitioner's position in this case. Mere speculation does not form a legal basis for disqualification. If respondent wishes, counsel could cross-examine the evaluator at trial to determine whether or not there is any bias. See Kaye v. Kaye, 11 AD3d 392, 784 NYS2d 47 (1st Dept. 2004).

Furthermore, bifurcation of the examiner's role, as noted earlier, would reduce greatly the efficacy of any forensic examination. Any forensic examination that relies only upon information presented by the party retaining that expert provides a more limited and therefore less useful perspective to the Court. Respondent always has the right to retain her own forensic examiner and present, if appropriate, that examiner's testimony at fact-finding. Respondent's stated concern that Dr. Oberfield's meetings with petitioner pursuant to the order directing forensic examination would bias the examiner against respondent because of petitioner's persuasive powers is pure conjecture and necessarily presumes that there is no neutral party who can examine the parties and, by extension, that there is no Judge who can fairly adjudicate this matter given petitioner's powers of persuasion. That the forensic expert has met only with one party thus far is a direct result of respondent's decision not to participate in any examination to date. Respondent's course of conduct in refusing to meet with the court-appointed neutral forensic examiner cannot serve as a basis to disqualify the expert. See Application of Lauro v. Dawn M., 24 Misc 3d 684, 879 NYS2d 293 (Fam. Ct. Kings Co. 2009).

Respondent has through the instant motion proffered Dr. Carol Berman or Dr. Donna Moreau for appointment by the Court as the forensic examiner for respondent. The proffer of Dr. Berman as a neutral forensic examiner is inappropriate given her role as an expert in respondent's suit against petitioner and others emanating from respondent's 101-day 2008 admission to a psychiatric facility. There also appear to be questions concerning Dr. Moreau's experience in conducting examinations of this nature. It is time for this matter to move forward to trial and for the court to have a written report from a qualified forensic examiner who has been able to conduct a thorough examination of the parties. Dr. Oberfield is that forensic examiner and respondent should comply with the prior order of the Court. Under these circumstances, the court must deny this branch of respondent's motion.

Respondent asserts further that the prior Presiding Judge should not have directed in her order of ten months ago that the parties share the cost of the forensic examination. Womack, supra , 30 AD3d at 487. The Court notes preliminarily that the Appellate Division had before it Judge Pearl's entire orders, including the allocation of the costs of the forensic examiner, when respondent herein sought leave to appeal these orders and stays of the orders and of these proceedings as a whole. As noted, the Appellate Division declined to issue a stay or to modify [*5]any branch of the orders in question.

In the instant motion, respondent did not present any evidence to substantiate her claim that the Court's allocation of costs was erroneous. Indeed, respondent's request that each side bear the cost of its own court-appointed forensic examiner undercuts respondent's implicit contention that she lacks funds to pay for her share of the cost of the neutral forensic examiner. Furthermore, in opposition to petitioner's motion for disclosure and other relief, respondent's counsel avers that respondent "is employed full time in a demanding professional position, holds a valid New York State medical license, and counsels and treats patients in the City's health clinics." Under these circumstances, there is no showing of a need for this Court to re-visit allocation of the costs of the forensic examination.

Given the court's denial of respondent's reargument/renewal application, that branch of respondent's motion that seeks an order prohibiting petitioner and her attorneys from communicating with the forensic examiner until after the final report on R. R. has been submitted to the Court is denied as moot. The Court also declines to grant the final branch of respondent's motion seeking to set the deadline for forwarding to opposing counsel copies of documents furnished to the evaluator to be five business days from the submission of the evaluator's report to the Court. The current process of exchanging documents required under the original order is better suited to reduce misinformation or incomplete information, as well as any delay in ensuring that all necessary and complete documents be provided to the evaluator in a timely manner.

All parties should keep in mind when interpreting section 251 and all provisions of the Family Court Act that the Act as a whole was created to protect children and to promote their best interests. It is time for this custody dispute to be adjudicated with all pertinent information properly presented to the Court. Continued delay is a disservice to the children and only further serves to delay reunification of this family, if appropriate.

This constitutes the decision and order of the Court.

Dated:New York, New York

November 3, 2009

___________________________________

DOUGLAS E. HOFFMAN, J.F.C. Footnotes

Footnote 1:The forensic examination may also assist the Court in its ongoing evaluation of the appropriate extent and manner of parenting time among respondent and the subject children. Kouzoujian v. Kouzoujian, 267 AD2d 8, 699 NYS2d 44 (1st Dept. 1999); Susan G.B. v. Yehiel B. - H., 216 AD2d 58, 627 NYS2d 384 (1st Dept. 1995).