(concurring in part and dissenting in part). The over-all issue, of course, is the right of a child custody litigant to have her retained psychiatrist examine the adverse parent. More specifically, we must decide whether Special Term abused its discretion in directing that plaintiff submit to a mental examination by the psychiatrist retained by the defendant. In view of the clear mandate of CPLR 3121 (a) and the uncontroverted allegations of both the defendant.and the psychiatrist that plaintiff is attempting to turn the children against defendant, I believe that this aspect of Special Term’s order was well justified and it should be sustained.
The grounds for requiring plaintiff to submit to the psychiatric examination are twofold. First, the court must determine the best interests of the children in a custody dispute and is obligated to “become aware of and to seek out every bit of relevant *297evidence and advice on the subject” (Anonymous v Anonymous, 34 AD2d 942). When a claim is made that the children are being damaged because a party to a divorce action is seeking to use them as a weapon against the adverse spouse, further investigation is warranted. Second, there is a clear legislative mandate for such an examination. CPLR 3121 (a) provides that when the physical or mental condition of a party is in controversy, the other party may demand that he or she submit to an examination by a physician designated by the party making the demand.
The value of psychiatric evaluations of both the children and the parents in a matrimonial custody dispute has long been recognized by the courts of this State (see, Kesseler v Kesseler, 10 NY2d 445, rearg denied 11 NY2d 721; Giraldo v Giraldo, 85 AD2d 164). Indeed, the Court of Appeals has held that CPLR 3121 is applicable to matrimonial actions whenever the physical or mental health of a party is in controversy (Wegman v Wegman, 37 NY2d 940). While recognizing that CPLR 3121 applies to matrimonial actions and that the parties to a contested custody proceeding place their physical and mental conditions in controversy (see generally, Matter of Barth v Barth, 74 AD2d 1002), my colleagues of the majority now hold that in the absence of a showing that court-ordered forensic evaluations are deficient, a party’s CPLR 3121 request for further psychiatric evaluation is to be deemed “duplicative and harassing” and, therefore, it must be denied. At that point, we part.
CPLR 3121 confers upon a party the right to direct an adversary whose mental or physical condition is in controversy to submit to an examination by a physician of the litigant’s choosing. Nothing in the statute suggests that this right is any less routinely available to a matrimonial litigant seeking child custody than it is to the defendant in a medical malpractice or other personal injury action. However, while the majority presumably would not quarrel with the right of a litigant in an action involving damages for personal injuries to compel the adversary to undergo a psychiatric evaluation by a designated psychiatrist, they now deny the same right to a parent who claims that the welfare of her children is being damaged and who asserts a right as significant and fundamental as the custody of her children.
Of course, the courts call upon impartial health case officials, such as the Nassau County Department of Social Services, to make psychological evaluations of the children and the parties to a custody dispute (see, Kesseler v Kesseler, 10 NY2d 445, supra; Giraldo v Giraldo, 85 AD2d 164, supra). That does not *298imply, however, that parties to proceedings as crucial to human relations as custody litigation should be deprived of the ability to obtain or provide further information through the use of additional experts. It certainly cannot mean that the views of such retained experts cannot play a valid and important role in the decision-making process. The art or science of psychiatry is not so precise that the opinion of a single “impartial” expert resolves all issues. Were that so, there would be no need to allow more than a single impartial psychiatrist to testify when a criminal defendant seeks to plead insanity. Rather, the reverse is true — the larger the pool of experts, the greater the stream of potentially useful information made available to the court. Indeed, the value of obtaining a multiplicity of opinions on questions of mental health has been specifically recognized by the Legislature in a variety of contexts. Thus, the opinions of at least two experts must be obtained whenever a criminal defendant’s capacity to stand trial is in doubt (see, CPL 730.20) or whenever an alleged juvenile delinquent’s competence is in question (see, Family Ct Act § 322.1). Similarly, to be involuntarily committed to a mental institution, a person must be examined by at least two experts (see, Mental Hygiene Law § 9.27). Quite apart from the litigant’s right to have an adversary examined by a designated psychiatrist, such evaluations can be a useful supplement to the “impartial” court-ordered evaluations.
The essence of the majority’s holding is that a psychiatric examination of a party by a designated expert retained by the opponent is “duplicative and harassing” whenever that party has been or will be subjected to such an examination by an “impartial” court-appointed expert, unless the party seeking the examination can establish that the “impartial” examination was or will be in some way defective. Although the holding states that this rule is limited to custody disputes, it provides no reason for treating such proceedings differently from other cases in which the court may order a psychiatric examination by an “impartial” expert. If such an examination is to be deemed “duplicative and harassing” in a custody dispute, it would seem equally “duplicative and harassing” in a juvenile delinquency proceeding, a proceeding to terminate parental rights, a support proceeding, or indeed any proceeding in which a court may have the power or the duty to order a mental examination by an “impartial” expert (see, e.g., Family Ct Act §§ 251, 322.1; Martin v Martin, 72 Misc 2d 222).
To the extent that the instant holding carves out an exception applicable only to custody disputes, I believe it is unjustifiable *299(see, Siegel, NY Prac § 344, at 422-23); to the extent that it sets forth a general approach to all cases involving psychiatric examinations by court-ordered experts, I believe it is an unwarranted departure from the normally broad disclosure rules recognized in this State (see, Allen v Crowell-Collier Pub. Co., 21 NY2d 403; Watson v State of New York, 53 AD2d 798; Siegel, NY Prac §§ 343, 344). Absent special circumstances that would render an examination unjustified in a particular case, a litigant in a child custody proceeding is entitled to have a designated psychiatrist examine an opponent whose mental condition is in controversy, despite the fact that the opponent has been or will be examined by a “neutral” court-appointed psychiatrist (cf. Marshall v Vyziak, 40 AD2d 1051).
Apart from its general rationale, the majority also concludes that in any event an examination of plaintiff by Dr. Levy would be inappropriate because the doctor has already formed an opinion after examining the children. While Dr. Levy’s affidavit makes it clear that he has formed an opinion regarding the children’s condition, this is not a case similar to those cited by the majority where the examining physician or psychiatrist is hostile toward one side in the litigation because of some personal animosity (see, e.g., Shapiro v Shapiro, 89 AD2d 538; Miocic v Winters, 75 AD2d 887). Indeed, there is no suggestion that Dr. Levy has ever met plaintiff or his attorneys. The doctor has done precisely what any psychiatrist consulted under similar conditions might be expected to do; he has examined his patients and formed an opinion concerning their psychological and emotional condition. In order to further verify this diagnosis, he deems it important that he examine the person in whose custody the children live and whom he assumes most likely to be responsible for their condition. To hold that because Dr. Levy has formed an initial opinion he must be precluded from continuing his investigation since any further observations he may make will be biased and thus render his testimony inadmissible, is to hold that an expert who forms an initial opinion loses (1) the ability to complete his investigation if it involves obtaining further disclosure and (2) the ability to proffer an ultimate opinion to the court.
Nor should the mere fact that Dr. Levy has been retained by defendant disqualify him. Unless we intend to dispense with the adversarial process as we know it, it is to be expected that parties will continue to seek the services of experts in the expectation that the views of these experts will support the retaining parties’ positions. While it is hardly a secret that this system contains the seeds of venally induced distortion, the cure *300lies not in abolition of the system, but in the fact finder’s ability to evaluate the potential bias when considering expert testimony. Furnished with the right to cross-examine and to use other experts, the Bar has long demonstrated the capacity to provide fact finders with adequate information to arrive at the truth or something close to it. That is the nature of the fact-finding process under which we operate and that is why there is no justification for holding the system inapplicable when the custody of children is in issue.
“[I]n a custody proceeding arising out of a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” (Matter of Lincoln v Lincoln, 24 NY2d 270, 271-272; see also, Matter of Gloria S. v Richard B., 80 AD2d 72). In this case, it is most difficult to discern from the short record and the conflicting allegations precisely what transpired between the instant parties and with their children since the action commenced. Quite obviously, there is a great deal of animosity between the litigants, animosity which manifests itself as it all too often does in child custody disputes, in a bitter struggle between the parents that has the children as both its objects and its victims. It is undisputed that plaintiff has taken it upon himself to unilaterally terminate defendant’s court-ordered visitation rights, an act which may well be inconsistent with the best interests of the children (see, Entwistle v Entwistle, 61 AD2d 380, 384-385). It is also undisputed that defendant has in her possession tape recordings, inter alia, of plaintiff instructing one of the children to make disparaging remarks about defendant. It may well be, as Dr. Levy asserts, that an “emergency situation” exists. Certainly, plaintiff’s behavior, if the allegations are true, would be “in conflict with the children’s social, emotional or moral welfare”. Under the circumstances, I cannot conclude that an evaluation of the plaintiff by Dr. Levy, who has extensive credentials in “disorders of visitation and child custody cases”, is “duplicative and harassing”.
While Special Term exercised its discretion properly in ordering plaintiff to submit to an examination by Dr. Levy, to further protect plaintiff’s interests, I would also direct that he be permitted to have counsel present during the examination (cf. Matter of Alexander L., 60 NY2d 329; see generally, Besharov, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 251, p 9 [1984-1985 Pocket Part]). To minimize the potential for disruption of the examination, however, counsel should remain outside the examination room or at least out of the view of the parties to the examination *301(see, Matter of Tanise B., 119 Misc 2d 30) and the attorney’s role must be limited to that of an observer (see, Matter of Lee v County Ct., 27 NY2d 432; CPL 250.10 [3]; Matter of Jose T., 126 Misc 2d 559). I would deny plaintiff’s request that a transcript be made of the examination, although counsel can, of course, take notes. Any benefits to be gained by a transcript would appear to be outweighed by the additional intrusion into the examination (see, Matter of Jose T., supra).
I agree with my colleagues that the portion of the order which required plaintiff’s parents to submit to examinations must be set aside because plaintiff’s parents were not parties to the action and were not served with copies of the order to show cause or granted an opportunity to be heard (see generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3121:3, p 571). In light of this conclusion, it is unnecessary to determine whether such examinations would have been appropriate had plaintiff’s parents been properly notified.
O’Connor and Lawrence, JJ., concur with Weinstein, J.; Lazer, J. P., concurs insofar as that branch of defendant’s motion which sought an order directing that the forensic examinations previously ordered by the court be expanded to include an evaluation of plaintiff’s parents should be denied but dissents and votes to grant that branch of defendant’s motion which sought an order directing plaintiff to submit to a psychiatric evaluation by Dr. Alan M. Levy, with an opinion, in which Brown, J., concurs.
Order of the Supreme Court, Nassau County, entered August 12, 1983, reversed insofar as appealed from, with costs, and those branches of defendant’s motion as sought an order directing plaintiff to submit to a psychiatric evaluation by Dr. Alan M. Levy and directing that the forensic examinations previously ordered by the court be expanded to include an evaluation of plaintiff’s parents with whom the parties’ children resided, are denied.