A Child’s Mental Health Records May Be Open to Parties in Custody Battle Even if Doctor Objects

By Richard Mann, Richard A. Mann, P.C., Indianapolis

The Indiana Court of Appeals in Meridian Health Services Corporation v. Thomas Martin Bell just ruled that a provision of Indiana Law that allows a mental health professional to deny the patient access to his or her records does not apply to a parent obtaining those records.

This was a custody and parenting time case where Father was seeking access to the child’s mental health records. The counselor in this case obtained a letter from a medical doctor stating that it was “medically necessary that the records of [the child’s] therapy sessions not be released to her parents.” The doctor and counselor took the position that I.C. 16-39-2-4 prevented the release of the records based upon the providers’ opinions.

The counselor failed to appear at a deposition and produce the records as Meridian Health had filed a motion to quash the subpoena 3 days before the deposition. The court had not yet ruled on the motion to quash. After which father filed a motion for rule to show cause and the court held a hearing on all pending motions. The court denied Meridian’s motion to quash and for a protective order and father subpoenaed the counselor for deposition again. The counselor again failed to appear at the deposition with the records and Meridian then filed the records with the court and asked the court to hold them under seal pursuant to Indiana Administrative Rule 9(G)(2). The trial court ordered that the attorneys could review the records in camera but subsequently ordered that the counsel could copy the records.

On appeal Meridian argued that 16-39-2-4 supported the refusal to deny the release of records and if not then the release was prevented by HIPPA. The Court of Appeals found under HIPPA there are 3 exceptions to the general rule that health care providers may release records to the parents and that none of the exceptions applied. The court went on to find that 16-39-2-4 only applies to a provider’s denial of access to records to the patient and a parent has access to the records unless there is a court order limiting such. The trial court ordered that Meridian pay attorneys’ fees and found that the Father should not have had to file the various legal pleadings to obtain the records as he was allowed those records under Indiana law but that he was not to disclose the information to the child. The court of appeals affirmed the trial court.

It has commonly been believed by many in the mental health community and the legal community that Meridian’s position was correct as far as the release of the records. In advising clients who are parents or providers, counsel should read this case carefully and review the citied material in the case as while the Father was given the records in this case there may be other ways hinted at in the opinion to protect the information if that is your client’s position.

In affirming the award of attorneys’ fees the court referenced the trial court’s finding about Meridian filing of the motion to quash shortly before the deposition and then not appearing for the deposition when the court had not granted or ruled upon the motion. The court made clear that the counselor was required to appear and put their objection on the record. You cannot simply choose to ignore the subpoena without court order

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs, News0 Comments

No Time to Plan

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“I don’t have time to plan for my negotiations.”

“Too many unknown variables exist to plan for our negotiations.”

“We’ll plan – but in our heads. Formal planning would be superfluous and wasteful.”

“My colleagues are bright, experienced and have great instincts. They need discretion to apply these strategies appropriately.”

“Forcing our folks to plan won’t work. It’s not our style to manage top-down.”

I’ve heard them all. The excuses. The objections. The reasons it just doesn’t make sense to create what I call “Strategic Negotiation Plans” based on the experts’ proven research.

Yet almost every serious negotiation professor, teacher and private trainer I know – in business schools, law schools, colleges and in private training programs – requires their students to create formal negotiation plans based on what they teach before having their students do mock negotiations.

So why is there such a disconnect between what is taught and what actually happens on the front-lines?

Almost all of the answers are found in a great book I recently read, Atul Gawande’s bestseller, The Checklist Manifesto: How To Get Things Right.

Critically, Gawande details various professions that have adopted simple checklists with profound lifesaving results and huge financial benefits. This includes aviation (pilot checklists), health care (surgical checklists), commercial builders (project plans), financial and venture capital firms, and more.

Of course, Gawande’s checklists are effectively “Strategic Negotiation Plans,” as each includes:
a disciplined, step-by-step method;
based on the experts’ proven research;
to be systematically “checked off” prior to the activity; and
that increases the parties’ likelihood of accomplishing their goals.

So how have some professions transitioned from doing it “in their heads” to formal checklists? And how can we ensure significant adoption among front-line negotiators in sales, purchasing, law, investment banking and others reliant on negotiation skills?

1.    Get Broad Recognition of the ROI
My law school professor Roger Fisher, co-author of the bestseller Getting to Yes, gave us a 7 step checklist almost 25 years ago to fill out before negotiating.  This was pretty new at the time. In fact, few schools even offered negotiation courses then.

Today, negotiation courses are ubiquitous throughout law schools, business schools, colleges, and in the private sector.

Bottom line – the research, training and proven ROI is there, just like Gawande found in these other fields. This is a necessary first step. But it’s only a first step.

2.    Implementation requires understanding the role of plans
Strategic plans are not a waste of time. They comprise a critical tool that provides strategic guidance to professionals.

As Gawande writes, “[i]t is common to misperceive how checklists function in complex lines of work. They are not comprehensive how-to guides, whether for building a skyscraper or getting a plane out of trouble. They are quick and simple tools aimed to buttress the skills of expert professionals.”

Implementation will not occur without changing front-line negotiators’ mindsets concerning the value inherent in creating strategic plans.

3.    The plans must be simple and straightforward
If the plan or checklist is too long, complex, difficult to understand and/or impractical to implement, they will never do it.

Daniel Boorman at Boeing – a pioneer in developing checklists for pilots – found that checklists should generally include:
5 – 9 items per list (although this somewhat depends on context, and the plan may include several lists);
simple and exact wording; and
be one page maximum per list.
This holds true for Strategic Negotiation Plans too.

4.    Test it and highlight the benefits
There is a good reason we test new things – to ensure they work and improve them as needed.

Companies adopting Strategic Negotiation Plans should develop appropriate plans and test them. Identify a select number of appropriate front-line folks to pilot them. Then track the benefits and highlight them internally.

This internal “negotiation” to increase utilization may be the biggest challenge of all.

Latz’s Lesson:  Learn proven strategies. Incorporate them into Strategic Negotiation Plans. Then execute. You need all these to achieve the best results

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog, News0 Comments

Indiana also Recognizes Foreign Registered Domestic Partnerships on the Basis of Comity

Family Law Case Review

Case: In re: Kristy Gardenour v. Denise Bondelie
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD:  A foreign Registered Domestic Partnership (“RDP”) can confer upon unmarried parties, who relocate to Indiana, rights and obligations that spouses share, on the theory that the foreign RDP was a contract between the parties’ that incorporated the foreign jurisdiction’s statutory substantive rights and obligations.

HELD: Indiana also recognizes foreign RDPs on the basis of comity.

HELD: A couple with a foreign RDP who knowingly and voluntarily agrees to co-parent a child by artificial insemination will each be a “legal parent” of the child.

FACTS AND PROCEDURAL HISTORY:
In 2003, California enacted its Domestic Partner Act, which afforded an opportunity for two same-sex parties to share in all the same rights and responsibilities as marriage, but by another name. To be declared domestic partners, the parties needed to submit a “Declaration of Domestic Partnership.” The Act included various recitations that the parties would be treated the same as spouses with respect to rights and obligations of property, children, etc.  The Act also afforded the parties an opportunity to enter into a separate contract that deviated from those statutory terms; in effect, a “premarital agreement,” but for a domestic partnership.

In 2006, Kristy and Denise, while living in California, entered into an RDP. They had no separate agreement modifying their statutory rights and obligations. The parties subsequently moved to Indiana.

In 2012, Kristy was artificially inseminated and gave birth to Child the following year. In 2015, the parties separated, Denise moved back to California, and Kristy filed, in Indiana, a petition to terminate the RDP.  As a result of those proceedings, the Indiana trial court terminated the RDP, awarded the parties joint legal custody of Child, provided Denise with a parenting time arrangement, and ordered Denise to pay child support to Kristy. Kristy appealed.

Kristy appealed the trial court’s finding and conclusion of the parties’ “spousal relationship.” The trial court had done so relying upon a contractual theory: Indiana recognizes cohabitation agreements and marital agreements as valid and enforceable. Though Indiana does not have RDPs, Indiana law can view Denise and Kristy’s declaration of RDP as a contract that incorporated the substantive provisions of California law with respect to the parties’ rights and obligations to be just like spouses. The Court of Appeals agreed: “[D]espite the Declaration not detailing statutory language pertaining to the rights and obligations of domestic partners, we conclude Kristy and Denise contractually entered into a RDP – thereby incorporating default terms of California law – and agreed to be treated as spouses.”

The Court of Appeals also noted that the RDP could be honored on an alternative theory of comity. The Court further observed that, as a matter of public policy, not recognizing the terms of the RDP would allow a parent in California to flee his or her obligations as a spouse or parent by crossing state lines.

Kristy also appealed the trial court’s finding that Denise was Child’s “legal parent.” However, the Court of Appeals concluded that Denise was a legal parent of Child both under the same RDP contractual and comity analysis set forth above, but also pursuant to existing Indiana case law that can establish a legal parent relationship for anyone who “knowingly and voluntarily agreed to co-parent a child by artificial insemination,” which was the case here.

The trial court’s legal custody and parenting time order was affirmed.

To view the text of this opinion in its entirety, click here: In re the Marriage of: Kristy Gardenour v. Denise Bondelie

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments

Evidence Supported the Trial Court’s Determination that there was No Repudiation by Son

Family Law Case Review:

Case: : Kevin R. Koontz v. Erin L. (Koontz) Scott
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court properly concluded Son had not repudiated his relationship with Father, for purposes of a college expense order, where Father had essentially abandoned the relationship when Son was 13, and Father later reached out to Son only after Mother began pursuing a contribution for college expenses.

FACTS AND PROCEDURAL HISTORY:
Mother and Father divorced in 2009, upon which Mother was granted sole legal and primary physical custody of Son. Father exercised regular parenting time for several months, until Father and Son — who was then 13 years old — had an altercation during which Son alleged that Father struck Son in the face.

Thereafter, Father continued to pay child support, but exercised no parenting time and there was no relationship between Father and Son.

In late 2014, Son graduated from high school and was accepted to IU and Ball State. Mother subsequently filed a petition for a post-secondary educational expense order. Father then began reaching out to Son, sending him a Facebook friend request that Son did not accept, and leaving several voicemails that Son did not return.

After a hearing, the trial court concluded that Father and Son clearly had a strained relationship, but it did not constitute “repudiation” by Son. The trial court then issued a college expense order allocating 1/3 of expenses to Father, Mother, and Son. Father appealed.

The Court of Appeals reviewed the McKay case and its repudiation-related progeny. The Court essentially found little to fault in Son’s reactions to a difficult situation. The Court considered Father’s outreach to Son to be “meager” and of questionable sincerity, since it occurred only after Mother filed a petition for a college expense order. Finding that the evidence supported the trial court’s determination that there was no repudiation by Son, the trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: Kevin R. Koontz v. Erin L. (Koontz) Scott

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review, News0 Comments

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