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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 115452
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Does it cost money to get a question answered? WA, Yes, I

Customer Question

Hi, does it cost money to get a question answered?
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: WA
JA: Have you talked to a lawyer yet?
Customer: Yes, I have a lawyer
JA: What advice did they give you?
Customer: My husband and I saw a domestic violence treatment specialist together, and he evaluated us as a couple and identified that there were domestic violence dynamics in our relationship but that my husband was not a good candidate for treatment because he was in denial. My lawyer does not know a way to get those records released or get access to them or any kind of statement from the DV program director because it was voluntary, it was a joint meeting, and my husband will not sign a release.
JA: Anything else you think the lawyer should know?
Customer: I am hoping to find information about whether there is a way to get those records or at least get a court order allowing our children's guardian ad litem to talk to that professional, since my husband's violent behavior toward the children was discussed and he admitted to it during that meeting.
JA: Because laws vary from place to place, can you tell me what state the court order was issued in?
Customer: There wasn't a court order for the DV assessment, we did it voluntarily before legal separation proceedings were started.
Submitted: 8 months ago.
Category: Legal
Customer: replied 8 months ago.
We live in Washington and our legal separation case is in WA, but the DV specialist we saw was in Oregon.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
The only thing your attorney can do, and they should know this, is file for a subpoena to the therapist for the records and to compel him to give a deposition about his findings. Since the violence is a material issue in your divorce/custody matter, even if your husband objects your attorney should be able to argue that at the very least you are entitled to the information under a protective order (meaning it cannot be disclosed outside of this divorce proceeding). Even if the session was voluntary, just like any medical or counseling record, it can be subpoenaed and the counselor can be subpoenaed to testify.
Since the therapist is in Oregon, your attorney has to apply to the WA court for "letters rogatory" which is a request to the WA court to ask them to send a request to the Oregon court to issue a subpoena to the therapist in Oregon that the therapist has to abide by and honor.
Customer: replied 8 months ago.
Thank you. Apparently there are special protections in WA for mental health records, and even though it was actually a DV assessment this is considered a mental health record? My understanding was that we can't really legally subpoena someone else's mental health records, but there might be a way to get a court order? My attorney seems to think that a subpoena wouldn't be legal or ethical, since it's technically a counseling appointment I guess?
Expert:  Law Educator, Esq. replied 8 months ago.

Thank you for your reply.

However the records are in Oregon, first off. Second, they can be obtained if it is a material issue in your case under a protective order and your attorney's job would have to be to show the court that this is a material issue regarding custody and visitation as it pertains to the children and at least ask for the court to view the records before making a decision, which the court can do in chambers without making the records public.

Customer: replied 8 months ago.
We are in the temporary orders stage and trial has not been set yet, so that could be a factor; I'm not sure.
Expert:  Law Educator, Esq. replied 8 months ago.

Thank you for your reply.

That could be one issue, that you are in temporary order stage, but again, if this conduct pertains to safety of the children, the court can at the very least review the records in chambers to decide on the relevance to the proceeding.

Customer: replied 8 months ago.
OK, thank you. The judge just told us to get a guardian ad litem. So maybe the GAL will be able to access the records or talk to the DV specialist? Do you know if it would be easier/better to get the records released to the GAL, to us or to the judge directly? Is there a resource you know of that I could point my lawyer to regarding this issue? Thanks again.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
A GAL should be a last resort, because typically they form personally biased opinions and if they do so against you, then you are stuck with them still and cannot get rid of them. Your attorney should still try arguing for the information either under a protective order or argue for the court to review the records in camera (in chambers) and to decide on whether or not they are material.
Customer: replied 8 months ago.
The judge told our attorneys at the last hearing that it was time get a GAL involved. I don't know if it was a court order or just a recommendation, but don't we have to get one if the judge says so?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
If the judge is pushing the GAL, then you would not have much of a choice I am afraid. The GAL at least can meet with the counselor and get their opinion as to what is best for the children as the GAL will represent the children's interests or they are supposed to anyhow.
Customer: replied 8 months ago.
OK, thank you very much. I actually initially stumbled upon this site looking for info about what to expect when working with a GAL, and what they look for in their investigation, what factors carry most weight etc. I am flabbergasted that the fact that my husband adjusted his work schedule to take one or two of the kids to an activity once a week and helped the older kids with homework evenings and weekends and was involved with the school and extracurricular activities while working away from home full time seems to carry more weight than the fact that he admits to taking photos of our 2-year-old's genitals (he says it was for medical reasons and that 2yo's counselor said it was OK, we provided a letter from said counselor saying that she did not tell him it was OK she told him it was inappropriate and to take the child to the doctor instead of taking photos if there was an issue), he told the kids that writing about having fantasies of my death was normal and I was just irrationally afraid he would murder me for no good reason, that the separation was all my fault, etc, that we have 3rd party statements testifying to him teasing the kids about killing their pets and to physically scary/aggressive behavior toward the kids, etc. and the fact that I have been a SAHM for 15+ years.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
Amazing that the court would allow him to be around the children unsupervised if that is the type of behavior he is engaged in. The problem with the GAL is if he is able to charm the GAL, they could still take his side, regardless of the fact that the GAL is supposed to be neutral to the parents and only focus on the best interests of the children.
Based on the behavior you describe, you may not even need the counselor if you have other witnesses.
Customer: replied 8 months ago.
The counselor who did a brief evaluation of the kids found that there were domestic violence concerns and that the kids told him they were afraid of saying anything that might hurt dad's feelings or make him look bad, but that the most recent incident involving physical aggression toward one of the kids was a year ago so there was "no imminent risk of harm" to the kids and their dad should get unsupervised visits. The problem is that there are no serious physical injuries or actual homicide attempts. The judge (commissioner actually) is sending them for substantial unsupervised residential time. He is very charming, has witnesses that he was an involved dad, is using my health issues (and therefore that he was the one to do things like many of the parent-teacher meetings while I was home with the other kids) against me, and has excuses and explanations about why everything was benign or no big deal or he didn't really mean it. :(
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
That is going to be one of the major issues that the GAL has too, getting the children to tell them the truth because they are afraid of hurting someone's feelings or making someone mad at them.
Customer: replied 8 months ago.
he has done a great job of parental alienation and getting the older kids' anger directed at me, so I am worried about that. I hope the GAL will be able to see and understand the dynamics at play there. We do have a toddler who is still nursing and is very attached to me, so I don't know what happens if the older and younger kids end up with different recommendations. Anyway, thank you for your help. I will pass on the info about asking for a subpoena for the records to my lawyer.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
Do not put your eggs in the GAL basket, most of them do not do a very good job of really protecting the children. If the GAL falls for his act, you could be in the same or worse boat, so I would try on putting your evidence and witnesses together independent of the GAL or even that counselor if you cannot get them to testify. You have to build your own set of witnesses and evidence and not rely on the GAL who is appointed to help the children, but rarely do they ever do that in reality.
Customer: replied 8 months ago.
Thank you. I passed on what you said to my lawyer, and she said, "Can you tell me who you talked to? I would be happy to get instruction from someone but I need some clarification."Is there any way you can recommend a resource or someone she can talk to for more information on this?
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
We cannot speak to your attorney for you. First, your attorney knows your facts in more intimate detail than we do. We can give you the general information based on the bare facts you provide us. The information I provided above is fairly standard knowledge among attorneys who handle custody cases. They know that they will have a hard time getting small children to tell the truth because the child loves both parents and does not want to offend either one and they also know GAL most time do not solve problems they create more problems. Your attorney should know your evidence and should know if you have some witnesses and evidence of everything you said above that you can present in court to prove your claims.
Customer: replied 8 months ago.
I only meant specifically in regards ***** ***** counseling records released. Thanks.
Expert:  Law Educator, Esq. replied 8 months ago.

Getting the counseling records would require getting a subpoena for the records from the court and serving the subpoena on the counselor to make them appear and testify with the records.