Transcript Slide 1

Indiana
Association for Infant and
Toddler Mental Health
&
Indiana Chapter of the AFCC
Joint Conference
August 24, 2012
Patrick K. Brown
Education:
BS Psychology, Wesleyan University
JD, Indiana University of Law Indianapolis
MA, Pastoral Counseling and Marriage and Family
Therapy, Christian Theological Seminary
Current Roles:
Attorney, solo practitioner family law
Family Mediator in private practice
Chair, ADR Section, Indiana State Bar Association
Co-Chair, Program Committee, ISBA Solo & Small Firm
Conference
Past Roles:
Founding member, incorporator, President of the
Indiana Association of Mediators, Inc.
Co-author of the amendments to the Indiana ADR
Rules for pro-se parties in domestic mediations
Therapist, Arbitrator, Parenting Coordinator
PREFACE
Disclaimer: Serving in several of these roles, some inside and some outside the
legal system, as well as acting as an attorney and an arbitrator, I find the role
boundaries bewildering at times, as I imagine you do too. Today I am going to
pose a family scenario for you to consider as I then go through each of the
roles. What I invite you to do, is to consider how each of these roles might
apply to this family and how you might manage the overlaps or conflicts
between the roles.
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Remember always that we are operating in a structured context – a legal system
which is rights based, adversarial and win-lose in nature.
The decision-making frame for the judge in domestic cases is the “best interests of
the child.”
The question then becomes how do we achieve the best interests for the child(ren)
and still respect the rights of the parents while operating professionally in such a
system?
How would you, from your professional perspective, apply each of these roles to the
following family scenario?
FAMILY SCENARIO
Parents:
Dick & Margee (married 2002)
Ex-spouse:
John (married Margee 1996, divorced 2000)
Children:
Abby, David and Paul
Dick:
Age 42
Step-Father of Abby, Father of David and Paul
Brick mason / Self-employed / $48,000
1 year of college, no degree
Good health
Margee:
Age 35
Mother of all 3 children
Secretary for family-owned small business / $21,000 + $4,386 in CS
2yr – Junior college degree
Breast cancer survivor (in remission) – depressed
John:
Age 36
Father of Abby
Teacher / $32,000 / pays child support of $84/week
Ball State BS degree in education
Good health / diagnosed with bi-polar disorder / doesn’t always take his
medications
Abby:
Age 14
9th grade
Good student
Plays soccer, choir, volleyball, track
Good health
Rebellious – wants to live with John (father)
David:
Age 3
Daycare
Good health / early developmental delays but seems ok now
Paul:
Age 1
Daycare
Diagnosed with autism in First Steps
FAMILY ISSUES
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Dick & Margee’s marriage is stressed by Abby/John issues, David and
Paul’s separate needs, and finances.
Dick is planning on filing for divorce soon. Margee doesn’t want a
divorce and is paralyzed. What changes does the divorce process itself
bring to the family structure and viability?
What to do about Abby? Should she go and live with John or not, and if
she does what does that do to the rest of the family system
emotionally? Financially?
If there is a divorce where does Margee live? And how does she make
ends meet on her income and child support, while losing (paying) child
support for Abby?
What about David and Paul?
SERVICE CONTINUUM
Divorce Filed
Therapy
Decree Filed
Therapy
Therapy
Mediation
Legal Process
Guardian Ad Litem/Court-Appointed Special Advocate
Child Custody Evaluator
CCE
Parenting Coordinator
Professional Roles
THERAPY
Therapist – Any mental health professional providing treatment of a parent, child,
couple or family who is involved with the legal system at any time during
treatment.
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Governing Statute/Rule or Case: See professional licensing statues in I.C. 25-33
(Psychologists); IC 25-23.6 (MFT, Social Workers, Mental Health Counselors)
and IC 20-28-12 (School Psychologists)
License – Psychology, School Psychology, Marriage and Family Therapy, Mental
Health Counseling, Clinical Social Work
Ethical Standards – Usually provided primarily by the individual professional
association and by the state licensing statutes
Participants – Usually the therapist and the patient(s)
MEDIATION
Mediator – A neutral, selected by the parties or appointed by the court, who
provides a confidential process to assist parties to a dispute reach a mutually
acceptable agreement.
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Governing Statute/Rule or Case: Rule 2 of the Indiana Rules for Alternative
Dispute Resolution (http://www.in.gov/judiciary/rules/adr/index.html)
License – No license required, registry requirements: Attorney, or
bachelor or advanced degree and 40 hour training; note there are no
requirements for private contracts with mediators
Ethical Standards – Contained in Rule 2, otherwise generally accepted
standards of national professional associations
Participants – Usually the mediator(s), the clients, and sometimes their
attorneys.
GUARDIAN AD LITEM / COURT-APPOINTED SPECIAL ADVOCATE
GAL / CASA – An attorney, or community volunteer who is appointed by the court
to (1) represent and protect the best interests of a child; and (2) provide the child
with services requested by the court, including (A) researching; (B) examining: ( C)
Advocating; (D) facilitating; and (E) monitoring; the child’s situation.
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Governing Statute/Rule or Case: IC 31-9-2-28(CASA defined); IC 31-9-250(GAL defined); IC 31-15-6( appointment in dissolution actions); note that
GAL/CASA authorizations are also in the child abuse and protection, juvenile,
probate, and juvenile delinquency sections of the Indiana Code
Ethical Standards – Contact Indiana Supreme Court, Division of State Court
Administration, State Office of GAL/CASA
(http://www.in.gov/judiciary/galcasa/)
License – none required, 30 hour training only required for CASA
Participants – Usually the GAL/CASA, the child(ren), parents, teachers, doctors,
therapists, care givers, clergy, etc.
CHILD CUSTODY EVALUATION
Custody Evaluator – a qualified mental health professional who functions as an
impartial, expert examiner
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Governing Statute/Rule or Case – Rule 35 of the Indiana Rules of Trial Procedure
(http://www.in.gov/judiciary/rules/trial_proc/index.html); Physical and Mental
Examination of Persons; case law supports an appointment by the court under their
discretionary powers in custody cases
License – Generally, but not limited to Psychology, School Psychology, Marriage and
Family Therapy, Mental Health Counseling, Clinical Social Work; could be anyone
who could qualify as an expert in the subject area
Ethical Standards – Usually provided primarily by the individual professional
association and by the state licensing statutes; see also AFCC Model Standards of
Practice for Custody Evaluators
Participants – Usually the evaluator, the children, the parents, caregivers, teachers,
friends, therapists and other relevant persons
PARENTING COORDINATION
Parenting Coordinator – A mental health or legal professional appointed
by the court to assist the parties in resolving issues and recommending
solutions to disputed parenting issues in a dissolution, paternity, legal
separation, or guardianship action (paraphrase of proposed parenting
coordinator guidelines January, 2012)
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Governing Statute/Rule or Case: NFP Chavez v Mason 870 N.E.2d 219(Ind.Ct.App. 2007,
the Court’s research shows “no statute, rule, guideline, or judicial precedent that would
authorize the trial court to appoint a “parenting time coordinator” to micromanage the
parties’ parenting time disputes.”; Note the pending proposed changes to the Indiana
Parenting Time Guidelines includes a new section on parenting coordinators, and is
expected to be forwarded to the Indiana Supreme Court for consideration in the next 60
days, other subsequent Indiana Appellate case recognize appointment of PC’s under the
court inherent power to investigate and determine child custody.
License – None; within the discretion of the parties, and/or the court; see above
Ethical Standards – AFCC has published Guidelines for Parenting Coordination, including
ethics components
Participants – Usually the parenting coordinator and the parent(s).
ROLE BOUNDARIES AND ISSUES
ISSUE
Therapy
Mediation
GAL/CASA
Custody
Evaluation
Parenting
Coordination
Duty to / or
Represents
Patient
Clients
Best
Interests of
Child
Court
Per Order or
Agreement
Confidentiality
Limited –
HIPPA
Yes – with
limited
exceptions
Yes
No
No in legal
process, yes
outside
Privilege
Yes w/
exceptions
Cannot
testify
No (HIPPA
excepted)
No – reports
to court
No – reports to
court
Informed
Consent
Yes
Yes
Yes
Yes - for use
No
of information
Conflicts
prohibited, no
dual roles
Yes
Yes
Limited
Yes – maybe
with consent
Yes
Competency
Licensed
Registered
only
GAL no
CASA yes
Yes – Expert
in area
Limited
ISSUE
Therapy
Mediation
GAL/CASA
Custody
Evaluation
Parenting
Coordination
Neutrality
Impartiality
No
Yes
No
Yes
Yes
Records subject
to subpoena
Limited
No
No
Yes
Yes
Binding
decisions
No
No –
voluntary
process
No – acts as a
party
No – expert
opinion
Maybe – can
be appealed
to court
Education to
parties
Yes
Yes
No
No –
assessment
Yes
Ex-Parte
Communications
Not
without
patient
release
With clients
Yes with
and attorneys attorneys, no
only
with court
No
Yes - with
attorneys, not
court
DISCUSSION TIME!
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Do we stay above the line? Or do we have to go below the line?
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Who is the most vulnerable participant in this scenario?
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Who is the most important professional in this scenario?
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How proactive is the court in this scenario? And why?
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How is the scenario different if one of the parties is pro se? Or
both? Do the children have a right to counsel? If so, what is their
role in the midst of the other roles?
What is the likely outcome of this scenario? And why?
STAY IN TOUCH!
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