Can You Get Discovery In New York State Custody Cases?

Lawyer carrying binders of discovery documents

In New York State courts,  the general rule is that liberal discovery (called “disclosure” in New York) is allowed in most civil cases.  An attorney can serve various disclosure devices, including demands for production of  documents, written interrogatories questions which demand that answers be made under oath) , and demands for deposition,  where parties and witnesses are asked questions in real time under oath, with responses taken down by a court reporter, without involving the court at all. 

The party served must comply with any discovery demands, unless they serve a written objection to disclosure which specifies the grounds for the objection. 

Under the CPLR the scope of discovery is very broad, and it requires a party to provide documents and evidence in their possession that may lead to the discovery of admissible evidence. 

If records demanded are voluminous, the court may require the party seeking the documents to travel to the other side’s offices and make their own copies. 

 The law is much less liberal about allowing discovery in New York State custody cases, whether they are in Family Court or in Supreme Court as part of a divorce action.

The law and rules also vary depending on which of the 4 NYS departments you are in.

The inability to obtain discovery can make custody trials especially challenging. Your only source of information may be your own client, and some clients are not reliable reporters, and few are objective reporters. 

Without information (which includes information contained in documents) it may not only be hard to try a custody case, but  can even make settlement of a custody case very difficult.  

NYS Law & Discovery Rules

Custody proceedings brought pursuant to the Family Court Act are “special proceedings” rather than “actions” and, as such, are governed by Article 4 of the CPLR. Unlike CPLR 3102(b), which provides for “disclosure by stipulation or upon notice without leave of court”, a party seeking discovery in a family court case must technically make a motion asking for leave to seek discovery.

In child support cases, there is a custom and practice in many counties that discovery is allowed even without a motion.

To my knowledge, no court in New York State has a similar custom and practice allowing discovery in child custody cases without leave of court, although in family court some judges and referees have allowed oral applications.

Historically, a party to a matrimonial action was not granted discovery unless the party seeking it was able to make “some showing of extraordinary circumstances” or, made “a showing of substantial merit”(Hunter v Hunter, 10 AD2d 291, 294-295 [2d Dept. 1960]).

The Court of Appeals last addressed the use of disclosure devices in matrimonial actions in 1975, when it allowed discovery, subject to the court’s power to grant protective orders. (Wegman v Wegman, 37 NY2d 940, 941 [1975]).

The appellate division courts have different rules for discovery in matrimonial matters and custody matters. The Fourth Department has taken a very liberal view of discovery in these cases and seems to be treating it as liberally in custody cases as it is treated in other civil cases.

The Third Department has rejected the principle that “disclosure on the merits in matrimonial actions is prohibited absent some showing of extraordinary circumstances” (Nigro v Nigro, 121 AD2d 833, 834 [3rd Dept. 1986]) and, rather than adopt a policy of full disclosure, held that “any such restrictions are better left to individual protective orders to prevent abuse, rather than embodied in a blanket prohibition.”

The First and second Departments (governing cases in downstate New York) both require a showing of “unusual circumstances [to depart] from the principle against disclosure (McMahan v McMahan, 100 AD2d 826, 828-830 [1st Dept. 1984]; Billet v Billet, 53 AD2d 564 [1st Dept. 1976]), (Ginsberg v Ginsberg, 104 AD2d 482-484 [2d Dept. 1984]; Garvin v Garvin, 162 AD2d 497, 499-500 [2d Dept. 1990]).

In recent years, many trial courts have been more open to making decisions on disclosure in custody case using a case by case analysis.

Although an argument could be made that, especially  for custody cases that are subject to the best interests standard, the scope of discovery should be as broad as in regular civil cases, in my experience, courts  have not been willing to go that far in family law cases.  However, in Matrimonial actions some courts have allowed inspection of a party’s computer and hard drive, subject to some confidentiality protections. 

Additionally, in most civil actions, New York Courts allow interlocutory appeals on discovery issues, and indeed in many type of cases, the majority of appeals are interlocutory appeals about discovery. However, in Family Court interlocutory appeals are not allowed of right in custody or visitation cases, but it is possible that the appellate court may grant leave to appeal on discovery issues.

Use of Subpoenas Instead Of Discovery

It is usually possible to get at least some of the information you need by issuing subpoenas duces tecum. 

If a third party is served with a subpoena, if the third party, or you, want to stop the other side from getting the documents, one of you will have to make a Motion to Quash the subpoena. Many lawyers, for whatever reason, are reluctant to make these types of motions. Also, at least when the subpoena is made on third parties, even if challenged, the court may allow it because it causes no burden on the other litigant in the custody case  to locate, sort, collate, and send the documents.

I have routinely subpoenaed New York City school teachers in custody cases, requiring them to bring various school records with them to court, and have never had any problem getting a judge to sign the subpoena, or been served with a motion to quash. 

Likewise, I have subpoenaed many parties’ rap sheets from Albany on custody or for visitation cases. 

Although rare, sometimes an actual  party in a custody case is subpoenaed to appear in court together with documents. This may work, especially if it is a trial subpoena, because many of the cases that limit disclosure refer to “pretrial disclosure”.

Other Creative Ways To Obtain Needed Information

Both the demand for a bill of particulars, and the notice to admit, are not technically considered to be disclosure devices, and hence both can be used in custody cases. However, a demand for a bill of  particulars cannot ask about evidentiary facts but just requires the other side to explain what exactly their claims are. For example, if the petition says someone was assaulted, you can ask what they mean by assaulted, but not when, or where the assault took place, whether there were any witnesses, etc.

A notice to admit asks a party to admit or deny certain facts which are not only undisputed but are undisputable. An example might be that the subject child was absent x number of days from school or was suspended from school on such or such a day. 

Using Documents Obtained In Other Cases

Quite often the parties in the custody case may have another case pending, such as a child support case, where discovery is liberally granted. I represented the mother in child custody and child support cases against a father, I obtained copies of the father’s credit card statements pursuant to the child support case, and when I looked through them I could see that the father had either bought alcohol or gone to a bar almost every single day for over a year.

If the other party has had a prior case and you have the transcripts from that case, you may be able to use the transcript to get  information for cross -examination during the trial. 

I also had a case once against the most famous matrimonial law firm in the country, where I had a father who had filed paternity and visitation petitions. Surprisingly, the attorney for the mother had  asked for depositions on the custody case and used the information obtained in the depositions on a subsequent step-parent adoption case seeking to terminate my client’s parental rights. 

Using Private Investigators

While ethical rules prohibit you from having your investigator interview a party who is represented by an attorney, unrepresented parties, including alleged victims of crimes, non-party witnesses,  and litigants who choose to be unrepresented in Family Court custody cases can be interviewed by private investigators. Investigators can sometimes even get signed witness statements from them. 

The signed witness statements allow an attorney in a custody case to call various witnesses even if they refuse to be interviewed in advance, because if they lie on the stand, the signed witness statements can be placed in evidence. 

Good investigators also have many ways, some using online tools, to obtain information and evidence, and have been helpful to me in many cases.

Court Ordered Investigation Reports

Because it is difficult or even impossible to obtain  discovery, I  always request that the the court order a court-ordered investigation by acs on every custody case that is headed for a hearing or trial. 

While the reports do not go into evidence automatically, they can be admitted as business records if you subpoena the acs worker who prepared the report. It is often possible to get even more information through the live testimony of the worker.  Typically, the COI reports will include interviews with both parties, home visits, rap sheets, domestic incident reports, reports of indicated cases for neglect or abuse,  and  sometimes even contain interviews of the children.