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Family Lawyer Vol. 4, No. 2 Fall 1999 A quarterly newsletter designed to provide legal information that family counselors and therapists can use to help their patients. Therapist beware: Psychologist pays monetary damages IA domestic violence hearing resulted in a wife being awarded custody of the two children in the family. The husband appealed the ruling because he believed that being in the wife's custody would be harmful to the children. The court scheduled a hearing at which the wife did not appear. The wife's psychologist, who had treated her for five years, testified at the hearing. She specifically stated that the wife was verbally and physically abusive toward the children and that the wife was obsessive compulsive. The therapist had never obtained her patient's consent to testify and reveal information from their sessions. Two years later, the wife filed a complaint against the therapist for monetary damages. She alleged that the therapist had violated the doctor-patient privilege and the regulations concerning psychologists and marriage counselors. The court agreed with the wife/patient and said monetary damages were warranted. The court stated that there is a standard to be followed, and it had not been followed in this case. Standards for testifying The standard to be applied is a three-pronged test:
The court also noted various exceptions to the standard, most notably where piercing of the privilege is required in the "best interest of the children." It found that this case was not one of the exceptions. In addition, the court gave parameters to help deal with this type of situation: The first resort is to use independent experts hired for the purpose of litigation. Only if this information is inadequate should the court consider piercing the privilege to compel disclosure of prior treatment records by the patient's treating physician. The court is to conduct an investigation in the chambers of the judge to determine from the records what is relevant. In this case, the court found that no attempt had been made to apply the three-pronged test and that there were less intrusive ways to obtain such information. Therefore, because the therapist disclosed confidences without the patient's consent, monetary damages were warranted. The lesson to be learned is: Contact your attorney before you agree to provide any information regarding your client.
What is reasonable? More and more of my clients are requesting permission to relocate to a more southern state with their children. In New Jersey, a parent cannot move outside the state without consent from the other parent or without a court order-which could take more than a year to get. If the father is a "hands on" father and sees the children frequently, chances are the courts will not allow the removal, even though the wife may be able to get a better job and the children would enjoy a higher standard of living. If any of your clients are thinking of "just going" anyway, tell them to think twice. There could be significant ramifications if a parent moves the children without permission. What the courts have not addressed-and what often happens-is when a parent wants to move a significant distance within the same state. In other words, a custodial parent living in northern New Jersey does not have to ask for permision to move to Cape May County, although a move to Manhattan (much closer geographically) would require such permission. I believe that family intervention is absolutely necessary when the relocation of children is involved. Only by discussing the impact on the whole family can rational decisons be reached. I recommend to my clients who are struggling with potential relocation that they seek family counseling in order to resolve the issue. (If any readers are interested in dealing with these issues, please contact me.) Workshop: Women beware, or what you must know about divorce
Pamela Cerruti, Esq., is conducting a workshop on divorce on October 6th at 7:30 p.m. The workshop is sponsored by the National Council of Jewish Women (NCJW) and will be given at 513 W. Mount Pleasant Avenue, Livingston, NJ. The cost is $5.00. Call NCJW for reservations. The telephone number is: 973-740-0588.
One of the most difficult situations I come across in my practice is when a client wants to change the physical custody arrangements of a child and tells me that his daughter asks him repeatedly if she can live with him. He claims he is only doing what his daughter wants. What are my options? Do I ask to see the little girl (age 8) and question her to verify the information for myself? Do I request that the little girl be seen and questioned in person by the by the judge? How much weight should be given to the little girl's preference about where she wants to live? Does Mary want to live with her father simply because every time she is with him it's "play time"? Is Mary angry at her mother? The courts have held that the preference of the child is just one of the factors to consider. The younger the child, the less meaningful the verbalizations will be. Dr. Richard Gardner, who has written extensively on the subject, states that, "Observing the parent-child relationship during evaluation is the best source of information for ascertaining parental superiority. A one-time interview by the judge does not allow a child to 'warm' up to the interviewer, and a child is thus less likely to divulge the 'truth'." The right decision is difficult. Should I allow the judge to interview the child, who has been told all during the divorce, "Don't worry, Mary, this is not about you." Now, all of a sudden, it is about Mary. Should I recommend that a therapist be hired, which means it could take a year or more for a decision to be reached, when the child may need to be moved as soon as possible? Request for Information If you have any recommendations as therapists, please send them to me. I would really appreciate hearing from you on this matter. The Family Lawyer is published quarterly by Pamela M. Cerruti, Esq., for mental health and social service professionals. This publication is intended to provide information to its readers. It is not intended to offer legal or professional advice. For more information, please contact: Pamela M. Cerruti, Esq. 45 Park St., Montclair, NJ 07042 Tel: 973-746-5590 Fax: 973-509-0308 Website: http://www.Cerruti-FamilyLaw.com |
