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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39048
Experience:  Retired (mostly)
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Im having to file a motion to compel my childs former therapist

Resolved Question:

I'm having to file a motion to compel my child's former therapist to release health records to a third party mental health professional, as per H&S 123115(b)(2)(b).

In seeking relief using form FL-310, I am concerned that becuase the therapist is not a party to the proceeding (underlying marital dissolution case), that my motion could be denied on this basis.

Is there specific language I should include in this motion in which i am requesting a court order to enforce H&S 123115(b)(2)(A)?
Submitted: 5 years ago.
Category: Family Law
Expert:  socrateaser replied 5 years ago.
You have to have previously served either a business records subpoena on the nonparty witness, or a subpoena duces tecum to appear at trial or hearing. You would then enforce the refusal to comply through an "OSC re Order to Comply with Subpoena." You are not enforcing H&S 123115 directly. To do that would require a separate civil action for a mandatory injunction.

Hope this helps.

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Customer: replied 5 years ago.
Can the Judge order my ex-wife to agree to sign a release of information in order to obtain the health records?
Expert:  socrateaser replied 5 years ago.
If discovery is still open (or the court reopens it), and you were to serve a request to inspect/produce against your spouse, and she refuses, then theoretically, you could file a motion to compel against her and explain that the only thing that's required to produce the records is for your spouse to send a written consent to the mental health professional -- because you already have. Therefore, the records are within your spouse's constructive control, and so she should be compelled to sign a consent and request the records from the health care professional.

The court could deny the release on grounds that the child's best interests may be subserved -- but, I would think that the judge ought to require production to the court, so that the records could be reviewed by the judge "in camera," and then he/she could make a final decision concerning the evidentiary use of the records.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 5 years ago.
Isn't discovery always open on child custody or child welfare issues? The trial we had recently was purely financial issues.
Expert:  socrateaser replied 5 years ago.
The discovery cut off date is 30 days prior to the first calendared trial date, even if continued -- unless the court reopens discovery on motion of a party for good cause shown -- or consent of the other party.

So, if you have had a trial on financial issues, then discovery is currently closed.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

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