Where custody is at issue in a divorce case, courts often appoint a forensic evaluator to assist the court in making a custody determination. The forensic evaluator, a mental health professional, will prepare a report with findings based on an evaluation of each parent. In preparing the report, the forensic evaluator will typically meet with the parties and their children (both together and separately, and often multiple times), conduct “collateral” interviews of third parties with knowledge about the parties’ interactions with the children, and may perform psychological testing of the parties.
While the parties’ lawyers often receive a copy of the forensic report before trial (and the parties are typically allowed to review a copy of the report before trial, often in their attorneys’ office), the question arises as to whether and at what stage of the litigation it is appropriate for the parties and/or their counsel to see the forensic evaluator’s “file,” including the notes, memoranda, records and raw data the forensic evaluator used to prepare the report. On the one hand, reviewing these materials before trial would improve a litigant’s ability to cross-examine the forensic evaluator’s findings and methodology. On the other hand, those materials contain highly sensitive and personal information, including notes that reflect an evaluator’s “immediate” impressions, the disclosure of which could damage relationships and give evaluators pause about memorializing initial impressions in writing.
