In an interesting unreported (non-precedential) decision released on October 13, 2010, the Appellate Division held that it was error to dismiss a case simply because a litigant was not ready to proceed on the date of a final hearing because they sought their own expert in a custody matter. 

In McCain v. Schultz the court, which had a detailed if not convoluted procedural history that delayed the matter somewhat, the court had appointed a custody expert to prepare a report.  When the report came in about 3 weeks before the final hearing date, the father’s lawyer wrote to the Court requesting an adjournment so that the father can obtain his own expert, as is his right under the Rules of Court.  The mother opposed the request allegedly given the age of the matter (but probably because the report was favorable to her position).  Rather than adjourn the matter, citing "rules" regarding timing for completion of "non-dissolution" (typically family court matters regarding custody or support between unmarried litigants) matters, the judge dismissed the matter without prejudice.  This appeal ensued.

The Appellate Division agreed it was error to dismiss the matter for this reason and reverse.  While sometimes a matter can be dismissed because a party is non-cooperative with discovery or some similar reason, that was not the case here.  Further, the Appellate Division held that it was wrong for the trial judge to ignore the rule that gives a litigant an absolute right to get their own expert if they disagree with a court appointed expert.  In this case, the trial court held that the rule only applied to divorce action. The Appellate Division disagreed.  Further, while the trial court said that the father was not prejudiced by the dismissal, aside from the time, money and effort already expended, from a practical perspective, if the matter was dismissed, he could not compel the mother’s cooperation with his own custody evaluation.  Similarly, dismissal caused prejudice with the related child support issue that was pending given the statutory prohibition against retroactive modification of child support. 

This case is an example of what happens all too frequently when justice or the lack thereof is tied to artificial time lines that trial judges feel that they must adhere to because they are pressured from their superiors and the Administrative Office of the Courts.  In this case, it appears that the court felt it must adhere to these deadlines. Unfortunately, it was at the price of a denial of justice to the father.

I have recently heard judges push parties to get joint custody experts (as opposed to a court appointed one), with the caveat that neither party could get their own expert if they disagreed with the recommendation.  This ostensibly is against the Rules of Court and arguably is a denial of justice.  But why would that requirement be made?  Because custody evaluations are rarely prepared in less than 3 to 6 months, sometimes more. If a new evaluation is required, then the case is delayed longer than the 1 year deadlines required by "Best Practices" and then the case is in "backlog."  So in these situations, parties are stuck with having to make a Hobbsian choice of spending money for two experts and putting their kids through two evaluations, when it may be unnecessary (often custody matters resolve once the neutral expert gives a recommendation) or waiving their rights before they know exactly what they are waiting for.

This case, however, is an example that justice is more important than artificial deadlines.

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