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Due process is something we hear a great deal about in the realm of the criminal justice system. It’s what allows an accused party to know the charges, shield themselves against self-incrimination and challenge opposing witnesses.

But due process is also important in civil and domestic matters as well, particularly on issues of child custody. When the top priority is the best interests of the children and the question of custody is in dispute, both parents must be given the fair chance to present their case.

One of the key determining factors in disputed Brooklyn child custody cases is a custody investigation report. These are investigations that are commissioned by the judge and carried out by a social service agency or mental health professional with the goal of gleaning information for the judge to weigh as evidence in the case. These reports are going to cover things like the kind of home environment the parent can offer, what kind of relationship the parent has with the child, whether he or she is working, drug-free and mentally stable.

Courts have generally held that in ensuring due process to both parties in these matters, child custody investigation reports must be submitted to the opposing side for review. The reason is that if the court is going to base its custody decision in whole or in part on that report, the parties and their attorneys have to be given the chance to read it, examine it and challenge it. Attorneys and parties may be able to cross-examine the other party as well as the investigator. Also, both parties have to  be given the opportunity to provide outside witnesses or documentation that could prove any potential inaccuracies in the report.

Still, there have been multiple examples across the country wherein a judge has denied the opposing side the right to review the custody investigation report. Many times, those findings are reversed upon appeal.

Case-in-point is that of Sumpter v. Sumpter, reviewed recently by the Maryland Supreme Court. The proceedings started in the spring of 2010, when the father in the case filed for divorce and simultaneously filed for sole physical custody of the couple’s two children.

Before the circuit court would consider his petition, it was ordered that a custody investigation report be initiated and completed. This was done, with the result being a 161-page report with attachments that outline the social service staff’s findings, resulting primarily from interviews with the parties, their relatives, their partners and their children. The report also covers the personal, criminal, health, housing, education, employment and child protective services histories of both parties. Additionally included are the children’s school records, the mother’s mental health records, information on the father’s fiancee, criminal reports pertaining to the mother and a child protective services report regarding one of the kids. At no point in the report was any recommendation made in the report with regard to custody.

Access to the report was limited by the court, with the judge stating that while all parties were free to view the report, it could not  be copied or carried out of the clerk’s office.

The mother’s attorney spent 1.5 hours at the clerk’s office, reviewing the reports and taking notes until the clerk’s office closed. The attorney did not have an opportunity to return before the hearing, at which he requested the report be either released to all parties for review or, in the alternative, struck from evidence.

This motion was denied, with the trial court erroneously stating that the law required that the copies not leave the control of counsel. The court allowed attorneys to share the single copy in between breaks, which the supreme court would later note “brought some measure of absurdity to the process.”

In the end, the father was granted his petition for divorce and awarded sole custody.

The mother appealed this finding, arguing that her due process rights were violated because she was denied sufficient access to the investigative custody report. As such, her ability to properly prepare for trial was inhibited and she was afforded inadequate procedural protection.

While the appellate court affirmed the earlier ruling, the state supreme court reversed it on the grounds that the trial court had misinterpreted the law and abused its discretion. The case was remanded for further consideration.

If you are interested in filing a child custody petition in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Sumpter v. Sumpter, Dec. 9, 2013, Maryland Supreme Court

More Blog Entries:

Establishing Brooklyn Child Support Change of Circumstance, Dec. 16, 2013, Brooklyn Child Custody Attorney