Rosenblitt v. Rosenblitt

OPINION OF THE COURT Weinstein, J. In this matrimonial action, custody of the parties’ three minor children is being contested. Plaintiff husband was awarded [293] interim custody of the children in May 1983, pending a hearing on the issue. On or about June 9, 1983, after a hearing at which no psychiatric evaluations were made available, plaintiff was awarded temporary custody with a direction that defendant be entitled to visitation two days per week. Defendant has allegedly been deprived by plaintiff and his parents of all contact with the children since June 23, 1983. While plaintiff admits having suspended defendant’s visitation with their children, he attributes his action to defendant’s violation of the court’s directive that all visitation would cease unless defendant refrained from consorting with a Herbert Ginsberg. On June 22, 1983, defendant brought the children to a child psychiatrist, Dr. Alan M. Levy, in order that he might evaluate their mental condition and prescribe treatment, if necessary. Based upon a meeting with the children, extensive conversations with defendant and tape recordings, which she had provided, Dr. Levy informed defendant that an “emergency situation” exists which constitutes an actual danger to the children and which necessitates immediate attention. Defendant thereafter moved, by order to show cause, for an order (1) directing that plaintiff submit to a psychiatric evaluation by Dr. Levy; (2) awarding defendant temporary custody of the infant issue; (3) directing an immediate hearing to ascertain whether an emergency situation exists; (4) directing that the children be given immediate psychiatric therapy; (5) directing that the previously ordered forensic examinations be expanded to include an evaluation of plaintiff’s parents; and (6) awarding defendant’s counsel reasonable counsel fees. Special Term denied defendant’s motion with the exception of directing plaintiff to submit to a psychiatric evaluation and expanding the forensic evaluations to include plaintiff’s parents. While defendant’s1 request for temporary custody of the infant issue was denied, plaintiff was directed to permit defendant visitation in accordance with the terms of an earlier court order. The issue presented for our determination is whether, in situations where child custody is being contested, the noncustodial spouse may obtain an order that the custodial spouse be examined by a psychiatrist designated by the noncustodial spouse. We conclude, under the circumstances of this case, that a further evaluation of plaintiff is unnecessary and inappropriate. Furthermore, even were we to conclude that a further psychiatric evaluation is warranted, defendant’s partisan expert would not be the proper person to conduct it. Plaintiff does not dispute the generally accepted principle that parties to a contested custody proceeding place their physical [294] and mental conditions in issue. Where both parties are seeking custody of the infant issue of their marriage, the health of a parent is clearly a relevant, although by no means the sole, consideration (Matter of Darlene T., 28 NY2d 391, 395). CPLR 3121 provides that when the mental or physical condition of a party is in controversy, any other party may serve notice and direct that the former submit to a physical or mental examination by a designated physician. CPLR 3121 is applicable in matrimonial actions (see, Wegman v Wegman, 37 NY2d 940, 941). Recognizing the potential for abuse in such cases, the Court of Appeals in Wegman v Wegman (supra, p 941) nevertheless noted that the courts’ “broad discretionary power to grant a protective order ‘to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts’ (CPLR 3103) should provide adequate safeguards”. The essence of plaintiff’s argument is that the requirement that he undergo further evaluation was superfluous inasmuch as forensic evaluations of the parties and the children had already been completed. Absent any proof that the investigatory and analytical efforts of the Forensic Division of the Department of Social Services were in any respect deficient, Special Term’s order compelling him to submit to further evaluation, this time by defendant’s privately retained expert, was duplicative and harassing. It is uncontroverted that forensic evaluations of the parties and the children had already been conducted by the Forensic Division of the Department of Social Services at the time of defendant’s application, although formal reports had not yet been submitted to the court. Where forensic examinations have 'been conducted and there is no showing that such examinations were in any way inadequate or deficient, it is an abuse of discretion to compel one particular party to submit to further evaluations at the insistence of the adverse party where not a single reason is presented in support of the application. The sole justification advanced by defendant is that an examination of plaintiff by Dr. Levy would enhance the credibility of her expert. It was only after defendant had been unsuccessful at a hearing and after the Forensic Division had conducted its examinations that defendant sought to enlist the aid of Dr. Levy. A disgruntled litigant should not be permitted to thus compel an adversary to join in his or her efforts to shop around for favorable expert testimony. Moreover, there would be little value in plaintiff’s examination by Dr. Levy inasmuch as Dr. Levy has already come to a [295] conclusion regarding this case. To order plaintiff to submit to a highly personal and subjective interview conducted by Dr. Levy would, in effect, amount to bolstering the preconceived opinions of defendant’s retained expert. While it is entirely appropriate for trial courts, confronted with a contested custody issue, to call upon qualified and impartial health care professionals to render reports based upon examinations of the children and parents, courts have expressed a preference that such examinations be conducted by neutral and impartial professionals. Further, as the Court of Appeals has held: “Nor is there any reason which would prevent the court in the proper exercise of a judicial discretion from calling upon qualified and impartial psychiatrists, psychologists or other professional medical personnel, preferably under the auspices of the probation officer or family counselling unit connected with the court, to examine the infant or to examine the parents also if they will submit to such examination. In such case the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of stipulation by the parties but would be available to be called as witnesses by either party subject to cross-examination by the other party under common-law evidence rules” (Kesseler v Kesseler, 10 NY2d 445, 452, rearg denied 11 NY2d 721; see also, Matter of Alexander L., 60 NY2d 329; Giraldo v Giraldo, 85 AD2d 164, 171-172, appeal dismissed 56 NY2d 804; Matter of Barth v Barth, 74 AD2d 1002; De Marinis v De Marinis, 74 AD2d 815, 816; Matter of Schloss v Schloss, 63 AD2d 898, 899). Appellate courts have been known to specifically condemn the use of an examining psychiatrist or physician who is demonstrably hostile towards counsel for one side in the litigation (Shapiro v Shapiro, 89 AD2d 538; Miocic v Winters, 75 AD2d 887). Consistent with this principle, it would be patently unjust to permit defendant’s retained expert, who has already reached a conclusion favorable to defendant, to conduct a psychiatric evaluation of plaintiff. The overriding concern where custody is in issue must necessarily be the best interests of the child (see, Domestic Relations Law §§ 70, 240 [1]; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Gloria S. v Richard B., 80 AD2d 72, 76). Absent specific behavior on the part of plaintiff which the court deemed to be in conflict with the children’s social, emotional or moral welfare, it was error to have ordered plaintiff to submit to an additional examination by a psychiatrist designated by defendant. It would, moreover, constitute a dangerous precedent to [296] indefinitely delay a decision in order to allow for further psychiatric examinations of a party by experts chosen by his or her adversary. The very nature of psychiatric examinations, involving as they do the emotions and perceptions of the examinee, presents a danger that a subjective and/or biased conclusion may result. As succinctly expressed by the Utah Supreme Court: “The question of a person’s sanity nearly always involves considerable delicacy. If mere allegations in an affidavit compelled the court to require a party to submit to a psychiatric examination, a way would be open for opposing parties to harass, annoy or intimidate each other. The potential for mischief in such a situation is obvious and the court would always be well advised in exercising caution and restraint in regard to such request” (Stone v Stone, 19 Utah 2d 378, 381, 431 P2d 802, 804). Accordingly, we conclude that, absent any indication that the investigatory and analytical efforts of the Forensic Division were deficient in any respect, Special Term committed an abuse of discretion in ordering plaintiff to submit to an examination by defendant’s privately retained psychiatrist. We note furthermore that Special Term was without jurisdiction to compel plaintiff’s parents to submit to forensic evaluations conducted by the Forensic Division. Plaintiff’s parents are not parties to this litigation, nor were they served with copies of the order to show cause or afforded an opportunity to be heard on the motion (see, Siegel, NY Prac § 58, at 59). Moreover, defendant failed to demonstrate that such an examination of plaintiff’s parents was necessary. Accordingly, that portion of the order under review which expanded the forensic evaluations conducted by the Forensic Division to include plaintiff’s parents was erroneous and should be reversed.