Category: confidentiality

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives

What is the Role of a Guardian Ad Litem in a Custody Case?

What is the Role of a Guardian Ad Litem in a Custody Case?

A guardian ad litem (GAL) may not be able to fly, but she may still be a superhero.  GALs are practicing attorneys who are appointed in different types of legal proceedings.  Their role is different depending on the type of case in which they are appointed.  When the current Family Court Rules of Practice and Procedure went into effect in 2013, they provided that the family court may on its own motion or on the motion of a parent or custodian appoint, among other appointments, a GAL.

Often in particularly acrimonious custody disputes a GAL will be appointed to assist the court and to represent the child in proceedings before the court.  A GAL’s direction in these cases has often been confusing an miss-mashed between rules and statutes affecting divorce proceedings, dependency/neglect/abuse proceedings, and even cases involving representation of inmates.  The Family Court Rules of Practice and Procedure, even though allowing appointment of a GAL in custody cases are conspicuously silent as to the role of the GAL in such a proceeding.

The Supreme Court recently published an opinion clarifying the role of the GAL in a custody proceeding.  In the case of Morgan v. Getter, the family court appointed a GAL who filed a report with the court making a recommendation that the sixteen year old daughter be allowed to relocate to Florida and the father be the primary residential parent.  The trial court refused to allow the mother’s attorney to call the GAL to the stand so as to cross-examine the GAL about the report or the recommendation.

The Supreme Court pointed out that there is a separate statutory provision allowing a trial court to appoint a friend of the court (FOC) to perform an independent investigation and file a report with the court.  In that case, the FOC would be subject to cross-examination about his findings, report and investigation.  The high court clarified that a GAL’s role in a child custody case is to actually act in the best interests of the minor child using the lawyer’s independent judgment.  To that end, the GAL may file motions, call witnesses, present evidence, but should not file a report with the court nor be subject to cross-examination.  The Supreme Court noted that there may be instances in which the lawyer’s determination of the best interests of the child may conflict with the child’s actual wishes and the GAL, if the child consents, may be required to report that conflict and the child’s wishes to the trial court.  The costs of the GAL’s fees can be apportioned to the parties as costs according to the rule.
This is a fairly radical shift in GALs’ responsibilities in these types of cases in Kentucky. However, it does clarify the direction that the GAL should take by adopting a best interests approach as opposed to simply advocating what the child wants; a decision that may be impossible for a child to articulate given age or maturity level.  When that happens, leave it to the superhero to save the day.
Photo courtesy of Jeffrey Kontur
Can I Bring a Friend or Family Member to My Consultation?

Can I Bring a Friend or Family Member to My Consultation?

The short answer is yes, you can bring someone with you to your initial consultation.  Whether you should bring someone or allow that person to sit through the entire meeting is another matter.  Going to see a divorce/custody attorney for the first time can be intimidating and scary.  Having someone else there can be a great resource for support and comfort.  This person might be your designated note taker so you can focus on listening to the attorney and asking questions that are pressing on your mind.  Your friend can also help make sure that you ask everything that is concerning you.  They might also help keep you organized and make sure you give the attorney all of the information he or she may need.  Keep in mind that this is your consultation and it is important that the attorney hear the facts of the case from you and that you discuss your goals.

It is also important that your consultation with the attorney be as open and honest as possible.  Everything you discuss with the attorney, whether you retain the attorney or not, is to be held in the strictest of confidence.  Nevertheless, there are sometimes issues involved in a divorce that may be embarrassing to you and difficult to share.  This can be double tough when your mom or best friend from grade school is sitting next to you.  If there are certain facts that you are embarrassed to share with your friend or relative present, you should probably ask them to wait outside while you discuss them with the attorney in private.  While the attorney has a duty of confidentiality to you, your friend or family member owes you no such duty.

Another reason to ask your companion to wait in the lobby is due to attorney-client privilege.  The attorney-client privilege is different from the attorney’s duty of confidentiality.  The duty of confidentiality binds the attorney to not reveal your secrets or other information about you.  The attorney-client privilege deals with the judicial system and your ability to invoke the privilege to prevent a court from requiring the attorney to reveal information about you.  That privilege applies to all communications you have with your attorney unless those communications also involved third parties (i.e. your mother was sitting next to you).  In that case, the privilege may be deemed waived as to any communications that took place while that third party was present.  Long story short, be careful about you bring with you to your consultation and what you say in their presence.

Photo courtesy of Allen