Summary
upholding denial of a parent's motion to exclude the forensic report, stating that even if a forensic report failed to cite specific professional literature in support of its analyses and opinions, movant could cross-examine the forensic evaluator regarding the lack of citations, and such an omission is relevant to the weight to be accorded to the evaluator's opinion, not to its admissibility
Summary of this case from C.C. v. D.D.Opinion
93N 304189/13.
02-02-2016
Elizabeth S. STRAUS, Plaintiff–Appellant, v. Daniel STRAUSS, Defendant–Respondent.
Cohen Clair Lans Greifer & Thorpe LLP, New York (Robert Stephan Cohen of counsel), for appellant. William S. Beslow, New York, for respondent. Parmet & Greenblatt, LLC, New York (Wendy J. Parmet of counsel), attorney for the child.
Cohen Clair Lans Greifer & Thorpe LLP, New York (Robert Stephan Cohen of counsel), for appellant.
William S. Beslow, New York, for respondent.
Parmet & Greenblatt, LLC, New York (Wendy J. Parmet of counsel), attorney for the child.
Opinion
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered June 25, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff wife's motion to exclude a forensic custody evaluation and appoint a new forensic mental health expert, and granted defendant husband's cross motion to modify the interim parental access schedule, unanimously affirmed, without costs.
The motion court properly denied plaintiff's motion to exclude the forensic report. Frye v. United States, 293 F. 1013 (D.C.Cir.1923) does not require that a forensic report cite specific professional literature in support of the report's analyses and opinions. As the motion court noted, plaintiff could cross-examine the forensic evaluator regarding the lack of citations, and such an omission is relevant to the weight to be accorded to the evaluator's opinion, not to its admissibility (Zito v. Zabarsky, 28 A.D.3d 42, 46, 812 N.Y.S.2d 535 2d Dept.2006 ).
The forensic report does not rely to a significant extent on hearsay statements. A review of the report reveals that the primary source of the report's conclusions are the forensic evaluator's firsthand interviews with the parties. In any event, defendant intends to call as witnesses at any future custody hearing anyone to whom the forensic evaluator spoke; thus, the declarants will be subject to cross-examination, rendering admissible any opinion evidence based on their statements (see Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421 2d Dept.2002 ). To the extent that any hearsay declarants are not cross-examined, the motion court acknowledged that those portions of the report containing inadmissible hearsay should be stricken or not relied upon (see Lubit v. Lubit, 65 A.D.3d 954, 956, 885 N.Y.S.2d 492 1st Dept.2009, lv. denied 13 N.Y.3d 716, 2010 WL 118203 2010, cert. denied 560 U.S. 940, 130 S.Ct. 3362, 176 L.Ed.2d 1247 2010 ).
Although the forensic report briefly refers to the parties' initial negotiations regarding custody, those negotiations do not form the basis for any conclusions regarding parental fitness or custody. Nor did the forensic evaluator contravene a prior order of the motion court, which directed him to refrain from making an ultimate recommendation regarding custody. The report states that preschool-age children “usually tolerate well” a 65/35 custody split, and older children a range between 65/35 and 50/50, but it made no specific recommendation in this case. Nor did the report's findings that defendant was an adequate parent, despite plaintiff's safety concerns, usurp the motion court's fact-findings in prior orders. In a prior order, the motion court cited certain safety concerns for the child while in defendant's care, but the court noted that those concerns dissipated after it issued its order. The motion court also noted that it was free to reject opinions in the report (Zelnik v. Zelnik, 196 A.D.2d 700, 700, 601 N.Y.S.2d 701 1st Dept.1993 ).
There is a sound and substantial evidentiary basis for the motion court's modification of the visitation order (see Matter of Frank M. v. Donna W., 44 A.D.3d 495, 495–496, 844 N.Y.S.2d 22 1st Dept.2007; see also Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 1982 ). Among other things, defendant sufficiently explained, without contradiction, why he missed certain visits with the child, and his failure to explain all of the missed visits did not warrant denial of his cross motion, particularly where the attorney for the child supported the motion and noted that the child enjoyed spending time with his father. Plaintiff never requested a hearing before the motion court, and, in any event, a hearing was not necessary (see Skidelsky v. Skidelsky, 279 A.D.2d 356, 356, 719 N.Y.S.2d 88 1st Dept.2001 ).