Family Matters Law Group P.A.
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September 2016 Archives

Psychotherapist and Privilege Part II

Once you know a privilege exists you must determine whether 1) the communication is an exception to the privilege or 2) whether the privilege has been waived.
Regarding element (1) of this analysis, there are several common exceptions to privilege.It is likely that you are familiar with the first two exceptions. They are child abuse and elder abuse. Another exception is in Baker Act proceedings where there are allegations of self-harm or harm to others. A less frequently discussed, but very important exception, is when the patient has relied on his or her condition as a part of their legal claim or defense. This was seen in the case of Critchlow and Critchlow (347 So.2d 453, 3rd DCA 1977) where the wife filed a Petition for Dissolution of Marriage and claimed therein that she was "a fit and proper person" to have custody of her 3 year old child. After filing the pleading she voluntarily submitted herself for mental health treatment and the Court allowed the treating professionals to be deposed. This does not mean that every parent seeking custody falls into an exception to privilege but instead that there are some fact patterns where that may well be the case. The last way to circumvent privilege is by a waiver. Privilege must be asserted in a timely fashion or it will be waived. This is very important. The privilege may be asserted by the patient, the psychotherapist, or a lawyer, so long as the person asserting the privilege is doing so "on behalf" of the patient and not for a self-serving purpose. (It is for this reason that a parent may not be able to waive the privilege on behalf of their child. This will be the topic of a future article entitled Children's Rights in Therapy.) If a person fails to assert the privilege then a waiver will have been deemed to have occurred and the therapist MUST then testify and /or release records. In any of the circumstances discussed, where a) no privilege existed because an element of the claim was missing b) an exception to privilege exists or c) a waiver has occurred the therapist must testify and or release records related to the treatment.

Child Support& Social Security Benefits

We discussed in other blog articles how child-support is calculated in Florida. Basically, Child Support is an algebra formula that takes into consideration both parents and, childcare costs, healthcare costs, and the number of overnights that each parent legally has pursuant to a court order. One of the elements that gets litigated, or comes into question when we are trying to figure out child-support is what exactly each person's income is. When people own their own business, work multiple jobs, or have sources of income that are not standard W-2 employee salaries or hourly wages, figuring out what someone's income is to get challenging. One of the places that gets confusing is one of the parents is receiving SSI or SSDI.

Is mediation right for my divorce?

Many people recently are thinking mediation when they begin to think about getting divorced. I find this exciting; it means more and more people are thinking about moving on from their marriage without the destruction and drama of litigation. However, mediation is for a specific purpose and does not meet every divorcing couple's needs. If you're thinking about amicably ending your marriage the first thing to ask yourself is: Do my partner and I both agree to end our marriage amicably? If the answer is yes, then you have a new set of questions to ask:

What is an uncontested divorce?

There are many ways to get divorced in Florida. To get divorced you need a marital settlement agreement (MSA) and a parenting plan or you need a final judgment (an Order from a judge which rules on all of the various aspects of a divorce). An MSA and parenting plan (if there are minor children) are the two documents that will need to be drafted and signed by the parties if they want agree to the terms of their divorce rather than making a Judge decide.

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