A self-censored chronicle of family court dramas, lived by parents who lost all or some visitation with or custody of a child or children based on perjury and/or other false courtroom evidence
Divorce and family law cases sometimes get ugly. And, in ugly
cases, it is not uncommon for one or both of the parties to have a personality
disorder or other mental health condition. Under certain circumstances, a
party's mental health is legitimately relevant to a proper determination
of child custody or alimony. Many times, however, there are
improper motivations for seeking confidential mental health records and
information. Your family law attorneyshould know when this
evidence is subject to discovery.
A party to a divorce or family law proceeding normally has the right to
prevent disclosure of communications or records made for the purpose of
diagnosis or treatment of a mental or emotional condition, including alcoholism
and other drug addiction. See Fla. Stat.
§ 90.503(2). This privilege applies to communications between
a patient and a psychotherapist, or persons who are participating in the
diagnosis or treatment under the direction of the psychotherapist. Id. The term
"psychotherapist" is broadly defined, and includes doctors,
psychologists, therapists, social workers, drug and alcohol abuse counselors,
and nurse practitioners who are engaged primarily in the diagnosis or treatment
of a mental or emotional condition. See Fla. Stat.
§ 90.503(1)(a).
In extreme circumstances, evidence concerning the party's mental health is so
vital to a proper determination of custody that a patient-litigant exception to
the privilege is justified. Id. The rationale for this
exception is that a litigant waives the psychotherapist-patient privilege by
proceeding on a claim for custody where the party's mental condition is an
essential element.
If evidence of mental health is still necessary in a custody case, the
more appropriate method of securing the information is to require an
independent psychological or psychiatric examination of the parent or
parents. Schouw v. Schouw,
593 So. 2d 1200, 1201 (Fla. 2d DCA 1992). In this way, the trial
court balances the need to determine the parents' mental health as it relates
to the best interest of the child, and the need to maintain the confidentiality
between a treating psychotherapist and the patient. Id.
In Attorney ad Litem for DK, the court explained its
reasoning:
We recognize the tension apparent in the law between the rights and
responsibilities of parents and the rights of children. Certainly, to promote
strong families, parents should be involved and active in the lives of their
children, including their health care, for which the parents are held
responsible. Unfortunately, sometimes the parents are the cause of abuse, both
emotional and physical, of their children. Allowing parents complete access to
their children's health care records under all circumstances may inhibit the
child from seeking or succeeding in treatment. The tension between the child's
need for confidentiality and privacy to promote healing may conflict with the
need of the court for information to inform its judgment as to the child's best
interest.
See Attorney ad Litem for D.K., 780 So. 2d at 308. Courts have also
held that even a court appointed guardian ad litem for the
child may be excluded from accessing the child's confidential mental health
records.
If you have questions about how mental health issues might affect your
rights in a family law case, contact an experienced Florida family law attorney.
Attorney David Schorr slapped a court-appointed shrink with a
defamation lawsuit for telling the judge deciding a custody battle with
his estranged wife that he was an unfit parent — for refusing to take his son
to the fast food joint for dinner.
To any rational, mature, objective parent or professional, the reason for this declaration could be justified by merely pondering the following question: "How reassured would you feel if you were standing trial for a crime, and your jury was comprised entirely of 18-year-olds?"
The reason children should not be empowered to make a decision about visitation with a parent is as obvious as why no one would feel comfortable having only 18 year olds sitting in judgment of us. A child's judgment, insight, perception, reality testing, and emotions only barely reach maturity by the END of adolescence. One only has to read the epistemological research and studies undertaken by Jean Piaget, philosopher and developmental psychologist, who wrote the "Bible" upon which educators rely to understand the cognitive development of children.
Children do not have the emotional and cognitive abilities do evaluate for themselves what is in their best interests; to theorize what it would be like to have a parent eradicated from their lives; to be able to discriminate what is rational, truthful, and moral amidst all the information their parents and other adults impart to them---especially about the malicious, fabricated, and fanciful data from the alienating parent. Children, for example, think very concretely until the age of 8; that is why they actually do believe, "Step on a crack, break my mother's back."
Not until much older, can they discriminate reality from fantasy, which is why they should not see horror shows until much older. The ability to think abstractly starts at the beginning of adolescence and is still insufficiently mature by 18. Children lack wisdom! And children further do not have the emotional wherewithal to contradict the alienating parent----if that parent is the residential parent----as they are so dependent upon that parent.
So to placate the alienated parent regarding the visit refusal, the court sanctions it by making an ineffective order for the child to undergo a course of individual therapy in the hopes of readying the child for a relationship with the alienated parent. Every time I hear the unsubstantiated platitude for the therapist, "to prepare the child for contact with the alienated parent," I want to erupt.
Because of their immature cognitive and emotional abilities as previously discussed, children do not possess the facility for abstraction. They cannot participate in a theoretical discussion about what an appropriate relationship entails; nor can they comprehend a desire for something in the abstraction. A child, therefore, cannot have a discussion about desiring a relationship with someone who is in the absentia----especially a brainwashed child; nor can a child participate in determining what to expect from the relationship with that "someone."
The Violence Against Women Act provides grants to state and local law-enforcement agencies, prosecutors, and courts to establish and enforce domestic violence laws and policies. But there is a growing belief that many of these policies are harmful to victims and give rise to false allegations
October is Domestic Violence Awareness Month. Despite the new VAWA Inclusion Mandate, some DV organizations are still denying the extent of abuse for certain victim groups, and ignoring the problem of mutual violence altogether.
SAVE worries these factual biases may turn Domestic Violence Awareness Month into DV "Un-Awareness" Month. Join SAVE's Trick or Truth campaign so the American public learns the truth of domestic violence!
We want to contrast the new VAWA Inclusion Mandate (highlighted on the SAVE home page) and Sen. Leahy's mantra, "A victim is a victim is a victim," with the biased statements on the NNEDV fact sheet.
