Child Privilege Attorney

In a number of custody cases, the court appoints a Child Privilege Attorney.  In Maryland, we sometimes call them Nagle v. Hooks attorneys after the case that gave rise to the concept.  A Child Privilege Attorney is a lawyer appointed in child custody cases in which the child is seeing or has seen a mental health professional and either one of the parents or a court evaluator wants that professional to provide information to the court.  The problem is that anything the minor child says or has said to that person is privileged, which means the professional may not tell anybody anything unless the patient says it's OK.  The problem is that the patient is a child, who by definition, is incompetent to waive the privilege.  Normally, the parents are the people who waive or assert the privilege for the children.  The problem is that in custody cases, sometimes what helps the parent's case is not always in line with what is best for the child.  Some parents are sure that the mental health professional will give information that will make their case, and they want it to come out in court, even if it means that nothing the child ever says to that professional will be privileged again.  That's where the Child Privilege Attorney comes in.  That person talks to the child and talks to the mental health professional and decides whether or not to waive the child's privilege with that professional. 
I have a few cases right now with Child Privilege Attorneys.  In onein particular, the Attorney declined to waive the privilege.  My client asked me why.  I think that's a good question, and one very few clients ask.  As a Child Privilege Attorney, these are things I think about when decided whether to waive the privilege. 
1.  Did the mental health professional tell the child that nothing they said would ever be told to anyone else?  If they did and the child believed them, I would be concerned that a waiver would hurt the relationship between the child and that professional going forward because of a lack of trust.  Even if the child isn't seeing that professional any more, I would be concerned on the effect a waiver would have on future relationships with similar professionals.
2.  What kind of effect would the waiver have on the child's ability to be candid with the professional in the future?  I would be concerned that a waiver may make the child reluctant to share information, even with a different mental health professional, and that reluctance would negate the benefit of a successful professional relationship.
3.  If the information the professional has is damaging to one parent or the other, what effect would the revelation of that information have on the child's relationship with that parent?  In other words, will the parent take out their anger concerning the revelation on the child?
4.  Is the information the mental health professional has even important?  Sometimes, it's just not.
5.  Can the information the mental health professional has be obtained by less intrusive means?  Can one side or the other get that information from a teacher, a neighbor or a coach?  If they can, I don't want to waive.

There's a lot that goes into deciding whether or not to waive the privilege a child has with a mental health professional.  On a good day and when litigation is not looming, most parents can ask those questions and make the correct decision.  The competing interests between what the parent wants and what is best for the child that arises during a custody action causes the court to question whether a parent can make the right decision.  The court would rather not take a chance with something so important, so they appoint a Child Privilege Attorney.  Here in the Trenches.

It's Not Just Me....

Just in case you think all of this talk about pet peeves is just me being me, the ABA Family Law Section listserv compiled a top ten list as well this week.  A big shout out to all my colleagues who contributed, and to Rob Robertson for putting it into a format that's fit for sharing with non-lawyers. I hope none of you sees yourselves in these.  Let's share some of the best. The sad part is that each of these is based on something that really happened to someone in the Trenches.

1. No you can't move across the country without telling your ex. Or rather, you can, but you really don't need the consequences that will follow. 

2. No you can't put a child up for adoption without telling the father.

3. No you can't "sign your rights away" to get out of paying child support - even and especially if the other   parent agrees.

4. It doesn't matter you had everything put into your name, you still don't 

get the house, the car and the retirement fund all to yourself.  Nice try.

5. Just because your spouse put it in a court pleading doesn't mean anyone takes it as the Truth.

6. No you can't obtain supervised visitation because you don't really know the dad. If there's drugs or violence involved, that would be a different story.

7. No I can't take your case on contingency, nor would I if I could.  Do you go to work on the off chance they might  decide you did a good job and will pay you?

8. If someone is bound and determined to live on the lam to avoid paying child support, there is probably nothing much you can do about it.

9. Women are not automatically favored in custody cases, but the person who is the most involved with the children usually is. You do the math.

10. (Probably the number one thing I tell people all the time) You can't fix crazy.

The extended version of “You can’t fix crazy” (also known as “No, I cannot make 

your ex stop acting like a jerk. Neither can the judge”) particularly in custody 

cases, particularly involving litigants over the age of 40:

“See over there? [points out office window] That’s Good Samaritan Hospital. Every 

day, over there, somebody 45 years old walks in, and gets told by a doctor, 

something pretty much like: ‘Ma’m, you’ve got Type II diabetes. If you don’t 

lose 100 pounds, and get your blood chemistry under control, first we'll 

probably have to cut off your toes, then you’ll go blind, from diabetic 

retinopathy, and then you’re GONNA DIE!’

“Then the next guy walks in, and the doctor says: ‘Sir, you’ve got coronary 

artery disease; if you don’t stop smoking, get your cholesterol and blood 

pressure down, and lose 100 pounds, you’re going to have a major cardiac 

episode, and then you’re GONNA DIE!”.

“Some of the people who hear that change the way they are living their lives 

in fundamental ways, BUT SOME OF THEM DON’T.

“If a medical doctor's (who someone's paying for the opinion) saying ‘If you 

don’t do X, YOU’RE GONNA DIE!’, isn’t guaranteed to change someone’s behavior, 

there’s nothing that I, or a judge can do or say which we’ll guarantee will 

change your ex’s behavior.”

Only Here in the Trenches.....

Karen's Top Ten

Every once in a while, I need to trot this out.....my pet peeves.  We can call them "Karen's Top Ten."  In true Letterman fashion (reverse numerical order), here they are.  By the way, it was really hard to rank them, because they all tick us off.

10.  Having your friends and loved ones handle your case for you.  The new wife who calls to make the appointment for your child support reduction case.  The sibling or parent who just needs to talk to your attorney so they truly understand why you can't follow the attorney's advice.  The significant other who calls 12 times a day to provide strategy for the case. We don't care if you gave us a release to talk to them.  This is your life, and if you don't care enough to deal with it, why should we?

9.  Promise to send us things, get us answers, or drop off documents, and then not do it.  Promise us again and then not do it again.  We kind of feel like directions on a shampoo bottle:  lather, rinse, repeat.

8.  Micromanage us.  This is your life.  We get that, and you know that best.  We know the legal process.  That's one of the reasons we're hired.  We know the rules, the people and the system.  Don't tell us how it works.  It's what we know best.

7.  Don't listen to what we tell you, and ask the same questions over and over again.  I can name a half dozen clients right now for whom we feel we should just tape record what we say to them on the phone, because every day we have to repeat ourselves verbatim.  I'm not talking about once or twice, but every day for weeks and weeks.  What we tell you won't change simply because you keep asking.

6.  Tell us all we care about is the money.  Really?  Please tell that to our families, who watch us toss and turn at night because we're worried about you and your case.  Why is it that the folks who say this are always the ones for whom we knock ourselves out, going above and beyond: going to their house to check on them, finding them outside help for problems, arranging for clothing and food?

5.  Never call the office.  Never return our calls.  Never answer a letter.  Never comply with discovery.  We hate finding out what's happening in our client's life from the other attorney.  We despise having to make excuses why we have no response to requests.  We worry that something terrible happened.  We know the client is doing or agreeing to something about which we'll only find out after it's too late.  We know we'll hear from them when the court orders them to pay the other side's attorney's fees for their non-responsiveness.

4.  Related to, but not the same as #5....Call the office every 2 minutes until someone answers.  Don't leave a message; don't assume we're helping other clients and are swamped.  Need an answer to your question so badly that you keep calling, and then ask us something like how many days it should take the mail to reach you.  We know you called.  We have caller ID.  We want to give your call the attention it deserves.  If we don't answer or call back IMMEDIATELY, it means we can't do that right now.


3.  Pay for our advice and then do exactly the opposite.  This is not the same as #7.  The reason you hired us was???  "No" means "no"; it does not mean "go ahead, just don't get caught."  How we feel about what happens next is kind of like how the plumber feels when he comes in to fix something the homeowner screwed up.  Too bad we're not allowed to charge double.  Did I mention, these folks always blame us when things blow up in their faces?

2.  Don't pay the bill.  Don't call to talk about it.  Don't send a few dollars.  Simply ignore it.  Wonder how PEPCO would feel if we did that to them?  Oh, that's right; we'd be pounding this out on a manual typewriter in the cold and dark.

1.   Mistreat my office staff.  This is my all time #1 pet peeve.  It is so far above all of the others as to leave them out of view.  First of all, my office staff are nice folks.  They have been taught extensively to treat the client with respect and courtesy.  Some clients really wear on them, but they don't bite back (OK, there was that one time, but the client was MASSIVELY abusive).  Second, the folks who mistreat my staff are usually sweet as pie to me.  Do you think the staff don't tell me how they've been treated?  We understand high emotions and frustrations: we didn't cause them and they're not an excuse to behave badly to us, so don't.

Pyrrhic Victories Anyone?

So sorry for the late posting, but I started working on my running costume for the Disney Princess Half Marathon and forgot the time completely.  Saturday, I ran my first 12 miles since the Baltimore Half Marathon.  It felt good (thankfully), but reminded me in turn of the Marine Corps Marathon back in 2008.  I finished that Marathon and then was unable to run for over 2 years because of injuries.  I ran the Baltimore Half with a personal best time, and couldn't run again for 6 months, also because of injuries.  I decided to train smarter for this race and listen to my body.  So far, so good.  I have had enough pyrrhic victories for a while.  Speaking of pyrrhic victories brings me back to....the Trenches.  Today, I received the opinion from the appeal the other side took in one of my cases.  I lost - sort of.  The appellate court sent the case back to the trial judge, but kept the original order that was appealed in place for the time being.  The instructions they gave to the trial court for what the judge needed to do when she received the case again made it clear that they want and expect the trial judge to come to the same conclusion as before.  They just want different reasons for that decision.  That's the long story made short.  So, the other side won a very expensive victory, only to be all but assured of losing all over again.  Kind of like my marathon and half marathon finishes, don't you think?  Here in the Trenches.

TGIF

Short Work Week

Long Run Tomorrow

Less Business? Not Likely

I went to a meeting today, and one of my friends here in the Trenches asked if I really meant that we could use less business.  That's the quandary of those of us who toil in the Trenches.  Do I really want less business, as in earning less money?  Of course not - working in the Trenches is how I make a living.  It's how I pay my mortgage, for the groceries, the kids' college tuition.  Let me be brutally honest, however.  I am a romantic.  Nothing gives me greater pleasure than helping my parents celebrate their 53rd wedding anniversary.  Heck, my grandparents made it past 60 years of marriage.  Doesn't that give you chills?  It does me.  The thing is that of the people who read yesterday's blog post or other advice like it, almost none of them will follow it.  Of those who follow the advice, even fewer can sustain it.  It would be nice if everyone 1)  would think more and marry less; 2) would understand that marriage is hard work; 3)  wouldn't take those who they love for granted.  It's not going to happen, so I'm not worried about getting into a different line of work, but maybe one or two saved marriages would be nice.  The romantic in me wants happy endings.  That's why, even though I understand marriages fail, I view my job as helping people move forward with their lives so they can be happy and successful, and yes, maybe find that person with whom they can celebrate 50 years of marriage.  I, and my colleagues in the Trenches, help them divorce in a way that preserves their dignity and privacy, and lets them know that someone cares whether their divorce is a positive event in the timeline of their lives, or simply a miserable way to end a bad marriage.  Here in the Trenches.

Resolutions

It's a new year.  Did you make any resolutions?  Come on, tell the truth - you know you did.  The problem with most resolutions is that they're big.  "I'm going to stop smoking."  "I'm going to lose 50 pounds."  "I'm going to leave my spouse and live happily ever after."  Big resolutions are specific, but they're overwhelming.  They're kind of like getting a request for hundreds of different types of documents, spanning 30 years.  That's specific, but again, overwhelming.  Wouldn't it be better to resolve to smoke 1 less cigarette a day, lose one pound a week?  Wouldn't it be better to take just one small measurable step to make your life better?  Even if the ultimate goal is to leave your marriage, isn't it better to say that you will learn all about your family finances, or pick your child up one day a week from school and spend time doing something they like?  Both of those things help if you're planning to divorce.   What if you just thanked your spouse for something they did?  So what if it wasn't something you wanted them to do.  So what if they didn't do it the way you would have done it.  It got done and they did it.  Thank them. Maybe if you thank them enough times, they'll start thanking you.  Maybe that will help you find something that was missing in your life, and it will feel a bit better and you won't want to divorce.  I could do with a little less business.  We all could - Here in the Trenches.