N.Y. Family Court Act § 1038: Records and discovery involving abuse and neglect

§ 1038. Records and discovery involving abuse and neglect. (a) Each

hospital and any other public or private agency having custody of any

records, photographs or other evidence relating to abuse or neglect,

upon the subpoena of the court, the corporation counsel, county

attorney, district attorney, counsel for the child, or one of the

parties to the proceeding, shall be required to send such records,

photographs or evidence to the court for use in any proceeding relating

to abuse or neglect under this article. Notwithstanding any other

provision of law to the contrary, service of any such subpoena on a

hospital may be made by certified mail, return receipt requested, to the

director of the hospital. The court shall establish procedures for the

receipt and safeguarding of such records.

(b) Pursuant to a demand made under rule three thousand one hundred

twenty of the civil practice law and rules, a petitioner or social

services official shall provide to a respondent or the child's attorney

any records, photographs or other evidence demanded relevant to the

proceeding, for inspection and photocopying. The petitioner or social

services official may delete the identity of the persons who filed

reports pursuant to section four hundred fifteen of the social services

law, unless such petitioner or official intends to offer such reports

into evidence at a hearing held pursuant to this article. The petitioner

or social services official may move for a protective order to withhold

records, photographs or evidence which will not be offered into evidence

and the disclosure of which is likely to endanger the life or health of

the child.

(c) A respondent or the child's attorney may move for an order

directing that any child who is the subject of a proceeding under this

article be made available for examination by a physician, psychologist

or social worker selected by such party or the child's attorney. In

determining the motion, the court shall consider the need of the

respondent or child's attorney for such examination to assist in the

preparation of the case and the potential harm to the child from the

examination. Nothing in this section shall preclude the parties from

agreeing upon a person to conduct such examination without court order.

Any examination or interview, other than a physical examination, of a

child who is the subject of a proceeding under this article, for the

purposes of offering expert testimony to a court regarding the sexual

abuse of the child, as such term is defined by section one thousand

twelve of this article, may, in the discretion of the court, be

videotaped in its entirety with access to be provided to the court, the

child's attorney and all parties. In determining whether such

examination or interview should be videotaped, the court shall consider

the effect of the videotaping on the reliability of the examination, the

effect of the videotaping on the child and the needs of the parties,

including the attorney for the child, for the videotape. Prior to

admitting a videotape of an examination or interview into evidence, the

person conducting such examination or the person operating the video

camera shall submit to the court a verified statement confirming that

such videotape is a complete and unaltered videographic record of such

examination of the child. The proponent of entry of the videotape into

evidence must establish that the potential prejudicial effect is

substantially outweighed by the probative value of the videotape in

assessing the reliability of the validator in court. Nothing in this

section shall in any way affect the admissibility of such evidence in

any other court proceeding. The chief administrator of the courts shall

promulgate regulations protecting the confidentiality and security of

such tapes, and regulating the access thereto, consistent with the

provisions of this section.

(d) Unless otherwise proscribed by this article, the provisions and

limitations of article thirty-one of the civil practice law and rules

shall apply to proceedings under this article. In determining any motion

for a protective order, the court shall consider the need of the party

for the discovery to assist in the preparation of the case and any

potential harm to the child from the discovery. The court shall set a

schedule for discovery to avoid unnecessary delay.