DECISION AND ORDER The fact-finding hearing in this contested child custody and visitation modification and enforcement matter commenced on February XX, 2023 and continued on March XX, 2023, March XX, 2023, and was scheduled to continue on May XX, 2023. The day before the appearance for continued trial, and while the forensic evaluator was in the middle of testifying, this Court’s chambers staff and all counsel received an unsolicited e-mail from the forensic evaluator. The email was sent in violation of the prohibition on communication between the evaluator and counsel set forth in the order appointing the forensic evaluator, as well as this Court’s specific admonishments on the record. Among other things, the email appeared to criticize counsel and this Court’s handling of the proceeding and attempted to direct counsel as to how to conduct and respond to questions asked of the evaluator on the witness stand. Specifically, the forensic evaluator admonished one of the attorneys for that attorney’s “inappropriate questioning.” The evaluator had been curt, defensive, and somewhat condescending toward that attorney during the most recent trial date. This, combined with the highly prejudicial and inappropriate email, caused this Court to question the evaluator’s understanding of the judicial process, this Court’s authority, the role of counsel, and the manner in which a forensic expert’s role appropriately fits within this framework. Following receipt of this email, this Court spent significant time considering how to proceed. This Court had serious concern that the e-mail and its aftermath would result in a successful appeal for one or both parties. Accordingly, this Court did not want to continue a lengthy trial knowing in advance there was a substantial likelihood of reversal requiring a new trial. After much deliberation, this Court proposed what it found to be the only viable options. First, the parties could waive the email and issues specifically related thereto as an appealable issue and continue the trial. Second, the Court could declare a mistrial. If there was not unanimous agreement, a mistrial would be declared to avoid the likelihood that any outcome of a trial relying on this forensic evaluation would be overturned, requiring another trial, taxing the parties’ and judicial resources and not in the best interests of the children. Counsel for M.P. and the attorney for the children consented to waive the appealable issue. Counsel for F.E. did not consent to waiving any rights and did not consent to a mistrial. After hearing from all counsel and considering their positions, there was no agreement as to either of the options proposed by the Court, and no one offered any feasible alternative suggestions. Ultimately, this Court found no alternative but to declare a mistrial. “In child custody disputes, the value of forensic evaluations of the parents and children has long been recognized” (Ekstra v. Ekstra, 49 AD3d 594, 595 [2d Dept 2008]). There are tremendous differences in each party’s rendition of the facts and motivations in this matter, and there will be a significant psychological impact on the children regardless of the outcome of this hearing. As such, this Court found it appropriate and necessary to appoint a forensic evaluator to submit a report to aid this Court in its determination of the best interests of the children. In a matter such as this, failing to order a forensic evaluation may constitute reversible error (see Brown v. Simon, 123 AD3d 1120 [2d Dept 2014], lv denied 25 NY3d 902 [2015]). Pursuant to CPLR 4402, “At any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just.” A court’s authority to sua sponte declare a mistrial has been recognized repeatedly (see Brigham Park Cooperative Apartments, Inc. v. Finance Administrator, 83 AD2d 551, 552 [2d Dept 1981] ["the trial court should have sua sponte granted a mistrial in the interest of justice"]; Michael H. v. April H., 34 Misc3d 519 [Fam Ct, Clinton County 2011]; East Coast Medical Care, P.C. v. State Farm Mutual Ins. Co., 11 Misc3d 732 [Civ Ct, Kings County 2006]). “The decision to grant or deny a mistrial is within the sound discretion of the trial court” (Lieberman v. Lieberman, 112 AD3d 583, 584 [2d Dept 2013], lv dismissed 22 NY3d 1124 [2014], rearg denied 23 NY3d 943 [2014]). Such a decision “is to be made on a case-by-case basis” (Chung v. Shakur, 273 AD2d 340, 340 [2d Dept 2000]). In some instances, “the denial of a mistrial motion may, given the facts of a particular case, constitute reversible error where it appears the motion should have been granted to prevent a substantial possibility of injustice” (Cohn v. Meyers, 125 AD2d 524, 527 [2d Dept 1986] internal citations omitted). This Court is well aware of its mandate to decide factual questions, including credibility. The forensic evaluator’s inappropriate email damaged the evaluator’s credibility in this matter, but more importantly, it rendered the evaluator’s report tainted, causing significant prejudice. This Court attempted to effect damage control by working within the circumstances created by the forensic evaluator to avoid a mistrial. However, without consent of all counsel to waive the limited appellate issues related to the email, the Court could not continue with the fact-finding hearing with such a high probability of reversal. Despite the report and evaluator being “tainted,” the Court attempted to salvage the report and testimony by proposing that the trial continue with a waiver on the evaluator’s email as an appealable issue. However, counsel did not all agree on this course of action. As a result, the Court was left without a report and evaluator upon which this Court and counsel could properly rely. That does not obviate the need for a forensic evaluation in this matter. Through no fault of the parties, counsel, or this Court, a situation now exists that requires a new forensic evaluator to be appointed to conduct a new evaluation and report. This Court recognizes that the sua sponte declaration of a mistrial is an extreme remedy. However, in this matter, the Court has considered whether any other options existed, and it finds declaring a mistrial to be the only proper way to proceed in the interests of justice. After this Court declared a mistrial during the May XX, 2023 appearance, counsel for F.E. made an application to vacate the extant interim orders dated [redacted] and revert to the parties’ 2019 So Ordered Parenting Plan. Counsel for M.P. and the attorney for the children objected to the application. It is generally disfavored to enter interim orders without a hearing to determine the best interests of the subject child (see Jones v. Scaldini, 238 AD2d 422, 423 [2d Dept 1997] ["The record revealed no apparent need or reasons to change custody without conducting an inquiry as to whether such a change is in the son's best interests"]; Martin R.G. v. Ofelia G.O., 24 AD3d 305, 306 [1 Dept 2005] [temporary transfer of custody pending a hearing on relocation reversed when "there was no apparent basis for the order nor any emergency concerns to support it"]). However, the entry of an interim order is sometimes warranted when the facts and circumstances of a particular case are such that not entering an interim order would be contrary to the child’s best interests (see Barksdale v. Medina, 272 AD2d 78, 78 [1 Dept 2000] ["extraordinary circumstances justif[ied] a temporary change of custody pending a hearing on the child’s best interests”]; see also Assini v. Assini, 11 AD3d 417, 417 [2d Dept 2004] [order granting motion "for temporary custody of the parties' child pending hearing and determination of his motion to modify the custody provisions of the parties' stipulation" affirmed]; see generally Wancewicz v. Canabush, 158 AD2d 904, 904 [3 Dept 1990] [appeal of Family Court "order awarding temporary continued joint custody to the parties pending a full hearing on the issue of modification of custody" dismissed]; Crooks v. Smith, 260 AD2d 804, 804 [3 Dept 1999] [appeal of Family Court's "temporary order modifying petitioner's visitation with his children" dismissed]). Earlier in these modification and enforcement proceedings, serious issues were raised regarding the safety and stability of F.E.’s household, resulting in this Court ordering an investigation by the Department of Social Services. Given the allegations and the statements made by the attorney for the children, this Court determined that the immediate safety of the children required the entry of an interim order permitting the children to reside with M.P. When those initial concerns subsequently appeared to be not as serious or urgent as they first seemed, it would not have been in the children’s best interests to be uprooted again while the matter was pending. This Court will consider all relevant testimony and evidence and make an ultimate decision in the best interests of the children. However, at this time, the AFC strongly supports the status quo, and the children are nearing the end of the school year at M.P.’s residence. Changing their residence again, a month before school ends, is not in their best interests. In addition, if the fact-finding continued, the current status quo would remain. The inappropriate conduct of the forensic evaluator resulting in a new forensic evaluation and a new trial does not change anything about the current circumstances of the children or where they reside. While this proceeding is pending, this Court will not “flip flop” children back and forth. For these reasons, the interim orders will remain in place at this time and F.E.’s application is denied. ACCORDINGLY, IT IS HEREBY ORDERED that a mistrial is declared; and it is further ORDERED that F.E.’s application to vacate the interim orders dated [redacted] is denied.
