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Frye Objection Overruled In Child Custody Case. Appellate Division Affirms Trial Court's Rejection Of Two Eschbach Factors: Primary Care Giver And Keeping Siblings Together.

    New York divorce lawyers should be aware of the child custody decision in the case Douglas H., v. C. Louise H., which was decided by the Appellate Division First Department on April 13, 2016.   Both an overruled objection to the trial court's rejection of the so-called Eschbach policy of keeping siblings together, and an overruled Frye objection to an expert report, were affirmed after an 18-day evidentiary hearing which awarded each parent custody of one child. 

    Although the trial court found that while both parties have "serious deficiencies as parents," the father was found to be the one more likely to make decisions that are appropriate for the son, who was diagnosed as being on the autism spectrum, to a therapeutic boarding school, which the mother opposed, and would use an appropriate educational consultant, in light of the child's need for intensive behavior modification." The Appellate Division affirmance did not disclose the precise analysis by the trial court beyond stating that  "the record supports the [trial] court's determination that the child and his sister should be separated.."

    The trial court was also held to have properly denied the mother's motion to exclude the forensic report in the child custody trial based upon the absence of a reference to professional literature and reliance upon hearsay, holding that the former is not required and that the primary sources of the evaluator's conclusions are his interviews with the parties and his own observations. 

    In New York child custody cases the trial record is usually complemented by a forensic mental health evaluation of the parties and the children, by a court appointed expert who has interviewed each of the parents and the children in the case, as well as collateral contacts, such as grandparents, aunts, uncles, neighbors, and teachers.  Often, the collateral information that these individuals provide finds its way into the testimony and written report of the forensic mental health expert's report, presumably to support the expert's conclusion as to which spouse has better parenting skills or whether there are dangerous or negative behavioral or personality traits that the court should be made aware of.  If those collateral sources or third parties are not present in the courtroom to be scrutinized and to be cross-examined, the entire value of the expert's conclusions become arguably unreliable and unfair to the children and to one or both of the litigants.     

    Child custody lawyers in New York have observed the trend of robust challenges to certain aspects of the "science" of mental health and the dogma that surrounds it.  This is understandable.  The empirical evidence related to psychological testing is a relatively recent phenomenon in the mental health field.  Traditional Freudian analysis did not conduct surveys related to psychological testing, and strict Freudian analysis is not based upon such testing.  Indeed, we cannot conduct scientific experiments on human babies, nor do we conduct intrusive scientific experiments on human beings.  Much of what has heretofore been considered accepted wisdom or learning in that field was not previously the subject of empirical verification.  Courtroom challenges regarding the validity of certain types of psychological testing, including testing involving empirical evidence based upon samples and studies,  has seen a marked increase in the   reported cases.

    New York child custody lawyers all know that in New York the evidentiary rule is that the opinion of an expert witness is admissible in evidence when the matter of inquiry requires special experience or special knowledge, which is beyond the within range of common experience or common knowledge.  New York follows the  Frye test, from the 1923 federal case, which essentially asks: "Is this particular testing methodology accepted by more experts than it is rejected by?"  The Federal Rules of Evidence, on the other hand, utilize the so-called  Daubert test, which has four parts: 1) whether the underlying methodology and principles of the testimony have been or can be tested; 2) whether the principles and methodology have been subjected to peer review and publication; 3) whether the known or potential error rate is acceptable; and 4) whether the underlying principles have obtained general acceptance in the scientific community.

    New York has been moving towards a Daubert Test-type formulation when evaluating expert reports and opinion evidence, but not yet.  The opposing litigant must first request a Frye hearing before the court permits an expert to testify; and the proponent must meet the challenge to the methodology used by the expert. A Frye hearing is necessary when an expert seeks to introduce a novel theory.  Frye is less concerned with the reliability of the expert's conclusions, than establishing that the expert's deductions are based on principles that are sufficiently established to have gained general acceptance as reliable.

    In the area of opinion evidence, experts have been permitted to base their opinions on facts which are not contained in the trial record.  Despite the asserted ability to rely on such  "professional credibility", the expert's opinion often rests upon hearsay: statements from people who are not in the courtroom and cannot be cross-examined.  Thus, while the expert's opinion is a necessary element of many cases, when it is built on data that cannot be subject to cross-examination, lawyers have increasingly succeeded in challenging the expert's opinion. 

    People v. Case, 114 A.D.3d 1308, holds that an expert's underlying data is subject to a hearsay objection.

    In People v. Lin, 46 Misc.3d 20 (App. Term, 2014)  a criminal conviction for driving while impaired was reversed because the prosecution did not provide testimony by the person who administered the breathalizer test.  That defect was held by the Court to violate the defendant's constitutional rights under the confrontation clause .  Crawford v. Washington, 541 U.S. 36 [2004].

    In People v. LeGrand, 8 NY3d 449 (2007), the New York Court of Appeals held that "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for the trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of the defendant; (2) based on principles that are generally accepted within the relevant scientific community; (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

    In People v. Mazariego, 117 A.D.3d 1082 (2nd Dept. 2014) the court approved an expert to report on the history of gangs and use of hand signals. 

    In People v. Qualress, 123 A.D.3d 1060 (2nd Dept. 2014) the Appellate Division held that it was proper for the trial court to admit into evidence expert testimony with respect to the quantity and packaging of crack cocaine carried by someone who sells drugs, as opposed to someone who merely uses them, since the expert testimony was beyond the ken of the average juror.     

    Against this backdrop of developing law, it is perhaps disappointing that Douglas  H. V. Louise H. provides so little guidance for New York child custody lawyers.  The undetailed announcement of the conclusion is akin to the home plate referee in a baseball game saying that the batter is out because he was called out.   The United States Supreme Court once observed that in the Courts, like baseball, there are no ties.  There can however, be situations in which less harm is done to family members in a child custody case because the expert's opinion is required to be objectively sound and reliable in a manner that is articulated in a more detailed way.

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