« November 2006 |
Main
| February 2007 »
December 06, 2006
Children's Therapy Records Privileged
The subject of the patient-therapist privilege often comes up in divorce cases. Many times this involves children who are in therapy or counseling to help them deal with issues created as a result of their parent's divorce. A recent trial court ruling in Polk County (Iowa) District Court addressed the issue of whether the children's therapist could maintain the confidentiality of these sessions despite a subpoena served on the therapist for the records. The court's ruling held that parents do not have the absolute right to waive the therapist/client privilege on behalf of their children.
The controversy arose when, in a modification proceeding, the non-custodial mother attempted to subpoena both the therapist and his counseling records regarding her children. The therapist asserted that the records were privileged pursuant to Iowa Code § 622.10(1) and refused to turn over the records or appear for the deposition. The mother then sought to have the therapist held in contempt for failing to appear for the deposition and failing to provide the counseling records pursuant to the subpoena. The Court adopted the reasoning set forth in Berg v. Berg, 886 A.2d 980, 986-87 (N.H. 2005), in which the New Hampshire Court held that, "the weight of authority…supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." The Court then held that courts have the authority and discretion to determine whether the attempted assertion or waiver of the privilege on behalf of a child is in the child's best interests. As in Berg, the Iowa trial court concluded that preservation of the privilege is essential in preserving the children's effective access to therapy. The particular outcome of this case relates to a very specific set of circumstances and facts that will be different in every case.
As post-trial motions are pending, including a request by the mother for the court to reconsider this particular ruling, it remains to be seen whether the ruling will be appealed. A copy of the ruling is available here in PDF format thanks to Lora McCollom, the therapist's attorney.
Posted on December 06, 2006 in Custody | Permalink
|
Comments (0)
|
TrackBack (0)
December 05, 2006
Unmarried "Joint Venture" Property Division
The Iowa Court of Appeals has issued an opinion that deals with a subject that is going to come up ever more frequently as an ever growing segment of the population lives together and does not marry: how to divide the property of unmarried partners when they go their separate ways.
In the case of Scheppele v. Schulz, the unmarried couple purchased a home in 2001 by making a down payment of about $156,000. Each party contributed approximately one-half of this amount, and the remainder was financed by Scheppele, but not Schulz. They then began extensive renovations of the property over the next two years. Each party contributed additional consideration in both cash and services in remodeling the home after the initial purchase. In 2004, their relationship fell apart and Scheppele filed an action "for partition of real estate and accounting."
Although the opinion is unclear exactly what Schulz's preferred method of division would have been, she argued on appeal that the trial court erred when it "relied on the equitable principles governing the termination of a joint venture." Schulz argued that this "doctrine has no application in a case such as this, which involves the personal residence of former romantic partners." The Court of Appeals found it "unnecessary to address this contention, as we would reach the same result whether we applied joint venture principles or the general rules of partition."
From a practical viewpoint, the holding of case emphasizes the risk that is taken in any partnership, romantic or otherwise, when no written agreement addressing the nuts and bolts of what will happen to the partnership's property if and when the partnership dissolves. Iowa appellate decisions clearly hold that in a divorce case under Chapter 598, the court cannot simply perform an "accounting of the marriage," as was done in this case. Unmarried cohabitating couples can reduce this risk of litigation by setting forth in writing exactly how property they accumulate together during the relationship will be divided if their "partnership" falls apart. Without such a written partnership agreement, the court will apply its own rules - ones which are unlikely to be satisfactory to either party.
Posted on December 05, 2006 in Property Distribution | Permalink
|
Comments (0)
|
TrackBack (0)
December 02, 2006
"Defense of Marriage Act," Child Custody, and Civil Unions - The Virginia Answer
In a case that has been closely watched, the Virginia Court of Appeals has issued an opinion that Virginia must give full faith and credit under the Parental Kidnapping Prevention Act ("PKPA" to a custody determination made by a Vermont court growing out of a Vermont civil union, in spite of the Virginia "Marriage Affirmation Act." The opinion holds that the federal "Defense of Marriage of Act" (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia's Marriage Affirmation Act and Virginia's version of the UCCJEA.
Posted on December 02, 2006 in Custody, Federal Laws-Cases, Other States | Permalink
|
Comments (0)
|
TrackBack (0)
Main
| February 2007 »
December 06, 2006
Children's Therapy Records Privileged
The subject of the patient-therapist privilege often comes up in divorce cases. Many times this involves children who are in therapy or counseling to help them deal with issues created as a result of their parent's divorce. A recent trial court ruling in Polk County (Iowa) District Court addressed the issue of whether the children's therapist could maintain the confidentiality of these sessions despite a subpoena served on the therapist for the records. The court's ruling held that parents do not have the absolute right to waive the therapist/client privilege on behalf of their children.
The controversy arose when, in a modification proceeding, the non-custodial mother attempted to subpoena both the therapist and his counseling records regarding her children. The therapist asserted that the records were privileged pursuant to Iowa Code § 622.10(1) and refused to turn over the records or appear for the deposition. The mother then sought to have the therapist held in contempt for failing to appear for the deposition and failing to provide the counseling records pursuant to the subpoena. The Court adopted the reasoning set forth in Berg v. Berg, 886 A.2d 980, 986-87 (N.H. 2005), in which the New Hampshire Court held that, "the weight of authority…supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with those of their natural guardians." The Court then held that courts have the authority and discretion to determine whether the attempted assertion or waiver of the privilege on behalf of a child is in the child's best interests. As in Berg, the Iowa trial court concluded that preservation of the privilege is essential in preserving the children's effective access to therapy. The particular outcome of this case relates to a very specific set of circumstances and facts that will be different in every case.
As post-trial motions are pending, including a request by the mother for the court to reconsider this particular ruling, it remains to be seen whether the ruling will be appealed. A copy of the ruling is available here in PDF format thanks to Lora McCollom, the therapist's attorney.
Posted on December 06, 2006 in Custody | Permalink
|
Comments (0)
|
TrackBack (0)
December 05, 2006
Unmarried "Joint Venture" Property Division
The Iowa Court of Appeals has issued an opinion that deals with a subject that is going to come up ever more frequently as an ever growing segment of the population lives together and does not marry: how to divide the property of unmarried partners when they go their separate ways.
In the case of Scheppele v. Schulz, the unmarried couple purchased a home in 2001 by making a down payment of about $156,000. Each party contributed approximately one-half of this amount, and the remainder was financed by Scheppele, but not Schulz. They then began extensive renovations of the property over the next two years. Each party contributed additional consideration in both cash and services in remodeling the home after the initial purchase. In 2004, their relationship fell apart and Scheppele filed an action "for partition of real estate and accounting."
Although the opinion is unclear exactly what Schulz's preferred method of division would have been, she argued on appeal that the trial court erred when it "relied on the equitable principles governing the termination of a joint venture." Schulz argued that this "doctrine has no application in a case such as this, which involves the personal residence of former romantic partners." The Court of Appeals found it "unnecessary to address this contention, as we would reach the same result whether we applied joint venture principles or the general rules of partition."
From a practical viewpoint, the holding of case emphasizes the risk that is taken in any partnership, romantic or otherwise, when no written agreement addressing the nuts and bolts of what will happen to the partnership's property if and when the partnership dissolves. Iowa appellate decisions clearly hold that in a divorce case under Chapter 598, the court cannot simply perform an "accounting of the marriage," as was done in this case. Unmarried cohabitating couples can reduce this risk of litigation by setting forth in writing exactly how property they accumulate together during the relationship will be divided if their "partnership" falls apart. Without such a written partnership agreement, the court will apply its own rules - ones which are unlikely to be satisfactory to either party.
Posted on December 05, 2006 in Property Distribution | Permalink
|
Comments (0)
|
TrackBack (0)
December 02, 2006
"Defense of Marriage Act," Child Custody, and Civil Unions - The Virginia Answer
In a case that has been closely watched, the Virginia Court of Appeals has issued an opinion that Virginia must give full faith and credit under the Parental Kidnapping Prevention Act ("PKPA" to a custody determination made by a Vermont court growing out of a Vermont civil union, in spite of the Virginia "Marriage Affirmation Act." The opinion holds that the federal "Defense of Marriage of Act" (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia's Marriage Affirmation Act and Virginia's version of the UCCJEA.
Posted on December 02, 2006 in Custody, Federal Laws-Cases, Other States | Permalink
|
Comments (0)
|
TrackBack (0)
© 2004-2011 iadivorce.com All Rights Reserved.