Ekstra v. Ekstra

• Decision Date: 11 March 2008
• Docket Number: 2007-08618.
• Citation: 854 N.Y.S.2d 439,49 A.D.3d 594,2008 NY Slip Op 02104
• Parties: ALEXANDER EKSTRA, Respondent, v. MELISSA EKSTRA, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 594

854 N.Y.S.2d 439

2008 NY Slip Op 02104

ALEXANDER EKSTRA, Respondent, v. MELISSA EKSTRA, Appellant.

2007-08618.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 11, 2008.

In an action for a divorce and ancillary relief, the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), entered October 2, 2007, as, upon a decision of the same court dated September 4, 2007, made after a hearing, awarded sole custody of the parties' children to the father. By decision and order on motion of this Court dated October 10, 2007, enforcement of the

order was stayed pending hearing and determination of the appeal.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the matter is remitted to the Supreme Court, Westchester County, for a reopened hearing in accordance herewith and a new determination thereafter on the issue of custody of the parties' children, and, pending such new determination, the mother is awarded temporary custody and the Supreme Court shall establish a visitation schedule for the father.

After the commencement of this matrimonial action, the Supreme Court held a separate trial on the issue of custody, and appointed psychologist Daniel S. Lobel as a neutral forensic expert to conduct evaluations and submit a written forensic report on the custody issue. The appointment order provided that "[t]he neutral forensic evaluator's final report shall be admitted as evidence-in-chief without the necessity for independent foundation testimony or evidence, pursuant to 22 NYCRR 202.16 (g)." The order further provided that "[a]ny party who wishes to cross-examine the neutral [forensic] evaluator, as permitted by the Uniform Rules, shall bear the cost of the neutral [forensic] evaluator's services in preparing such testimony, travel and testifying unless the Court directs otherwise." After Dr. Lobel's report was submitted, the father's counsel expressed an intention to cross-examine him and asked the court whether the father would be required to bear the costs of his appearance. The court responded that the father would not be required to bear that expense, but made no other provision for payment. As a consequence of not receiving his fee Lobel did not appear and the court thereupon granted the father's application to preclude the forensic report. Relying largely on its evaluation of the credibility of the witnesses, the court awarded sole custody of the parties' two children to the father. The mother appeals.

In custody disputes, the value of forensic evaluations of the parents and children has long been recognized (see Matter of Womack v Jackson, 30 AD3d 433, 434 [2006]; Stern v Stern, 225 AD2d 540, 541 [1996]). Thus, the court properly appointed a neutral expert to...