| Matter of Armstrong v Heilker |
| 2008 NY Slip Op 00324 [47 AD3d 1104] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Robert W. Armstrong, Respondent, v KarenHeilker, Appellant. |
—[*1] Larisa Obolensky, Delhi, for respondent. Sarah Braen Scott, Law Guardian, Franklin.
Spain, J. Appeal, by permission, from an order of the Family Court of Delaware County(Becker, J.), entered May 22, 2007, which, upon reargument, in a proceeding pursuant to FamilyCt Act article 6, granted petitioner's motion to, among other things, direct respondent to discloseher medical records to an expert witness chosen by petitioner.
In July 2005, petitioner (hereinafter the father), the custodian of the parties' three children(born in 1990, 1994 and 1997), commenced this proceeding seeking to further modify theparental access of respondent (hereinafter the mother) by suspending her visitation with thechildren based on her recent hospitalization for the treatment of mental illness. Shortly thereafter,the mother filed a petition confirming her brief hospital stay—asserting that she washospitalized at her own request—and seeking a refinement of the then-existing visitationorder, contending that her "moods" had been "stabilized" as a result of a medication change. InMarch 2006, Family Court entered an order which granted the father's request for full disclosureto the father of the mother's "mental and physical health records," but narrowly limited thedisclosure to a 15-month period of time; the court also directed the mother to provide additionalrecords covering a broader time period for the court's in camera review. Thereafter, the courtgranted the mother's motion to reargue and entered a new order in May 2006, which limited itsprevious order by requiring that the mother provide her mental health records only to the courtfor its in [*2]camera review. In May 2007, after a review of themother's "medical records," Family Court entered an order which directed her to submit to amental health evaluation by an expert to be selected by the father and to fully disclose her"complete medical records" to that expert for the purpose of an "evaluation of her mental health."On the mother's application, this Court granted leave to appeal from the May 2007 order andissued a stay pending appeal pursuant to Family Ct Act § 1112 (a) and § 1114 (b).
Initially, the mother contends that Family Court erred in ordering her to fully disclose hermedical/mental health records to the father's expert because, among other things, her mentalhealth status was not in controversy and she had not waived her physician-patient privilege.Although not determinative, the mental health of a parent is necessarily relevant in everycustody/visitation proceeding (see Matter of Darlene T., 28 NY2d 391, 395 [1971];Rosenblitt v Rosenblitt, 107 AD2d 292, 293-294 [1985]; see also Matter of Shepard vRoll, 278 AD2d 755, 756-757 [2000]).
The mother also asserts that it was error to allow the father to choose the expert and weagree. The decision to direct a forensic mental health evaluation in a child custody or visitationdispute lies within the sound discretion of the court and, on the record before us, we discern noabuse of that discretion[FN1] (see Matter of Kubista v Kubista, 11AD3d 743, 745 [2004]). However, in the absence of a binding agreement by the parties, theaccepted practice is for the court to order an independent evaluation (see Family Ct Act§ 251 [a]; Matter of Baker v Ratoon, 251 AD2d 921, 923 [1998]). Indeed, thestatute "makes it clear" that such an evaluation "should be done by a court-appointed[qualified mental health] professional and not one chosen by a party to the proceeding"(Matter of Michelle A., 140 AD2d 604, 605 [1988] [emphasis added]; see Matter ofSullivan County Dept. of Social Servs. v Richard C., 260 AD2d 680, 682 [1999], lvdismissed 93 NY2d 958 [1999]). Clearly, the materiality and need for a mental healthevaluation have been established in this case.
Accordingly, we remit this proceeding to Family Court and, if the court in its sounddiscretion presently deems it appropriate to order a forensic mental health evaluation of themother, it must select an independent or neutral (or agreed-upon) psychiatrist or psychologist toexamine her and submit a report to the court.[FN2] The court shall further exercise its discretion as to [*3]the scopeof the evaluation, directing, among other things, which medical records of the mother will bemade available to that professional, what access the parties and/or their attorneys will have to thereport, how the report will be used at trial and who will bear the expense of the evaluation.
Cardona, P.J., Peters, Rose and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as directed that respondent submit to a mentalhealth evaluation by an expert chosen by petitioner; matter remitted to the Family Court ofDelaware County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: Notwithstanding the provisionsof the CPLR (see CPLR 3121, 3124) regarding medical examinations includingpsychiatric and psychological examinations, Family Ct Act § 251 should be followed inFamily Court proceedings in which any such examination "will serve the purposes of this act"(Family Ct Act § 251 [a]). These examinations have become known as "forensicevaluations" meaning they fall within that part of medicalscience—forensics—which relates to the law and, as here, are deemed material andnecessary by the court in reaching a proper outcome.
Footnote 2: In many cases the parties andthe Law Guardian stipulate to the selection of a forensic expert who is then approved by the courtand ordered to perform the independent evaluation.