IndianaAssociation for Infant and

Toddler Mental Health &

Indiana Chapter of the AFCC

Joint ConferenceAugust 24, 2012

Patrick K. BrownEducation: BS Psychology, Wesleyan University

JD, Indiana University of Law IndianapolisMA, Pastoral Counseling and Marriage and Family Therapy, Christian Theological Seminary

Current Roles: Attorney, solo practitioner family lawFamily Mediator in private practiceChair, ADR Section, Indiana State Bar AssociationCo-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 mediationsTherapist, Arbitrator, Parenting Coordinator

PREFACEDisclaimer: 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.

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 SCENARIOParents: Dick & Margee (married 2002)

Ex-spouse: John (married Margee 1996, divorced 2000)

Children:Abby, David and Paul

Dick: Age 42Step-Father of Abby, Father of David and PaulBrick mason / Self-employed / $48,0001 year of college, no degreeGood health

Margee: Age 35Mother of all 3 childrenSecretary for family-owned small business / $21,000 + $4,386 in CS2yr – Junior college degreeBreast cancer survivor (in remission) – depressed

John: Age 36Father of AbbyTeacher / $32,000 / pays child support of $84/weekBall State BS degree in educationGood health / diagnosed with bi-polar disorder / doesn’t always take his

medications

Abby: Age 149th gradeGood studentPlays soccer, choir, volleyball, trackGood healthRebellious – wants to live with John (father)

David: Age 3DaycareGood health / early developmental delays but seems ok now

Paul: Age 1DaycareDiagnosed with autism in First Steps

FAMILY ISSUES 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

Guardian Ad Litem/Court-Appointed Special Advocate

Child Custody Evaluator

Parenting Coordinator

Mediation

Therapy Therapy

CCE

Legal Process

Professional Roles

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.

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)

THERAPY

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.

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.

MEDIATION

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.

Governing Statute/Rule or Case: IC 31-9-2-28(CASA defined); IC 31-9-2-50(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.

GUARDIAN AD LITEM / COURT-APPOINTED SPECIAL ADVOCATE

Custody Evaluator – a qualified mental health professional who functions as an impartial, expert examiner

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

CHILD CUSTODY EVALUATION

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)

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).

PARENTING COORDINATION

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 of information

No

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

ROLE BOUNDARIES AND ISSUES

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 and attorneys only

Yes with attorneys, no with court

No Yes - with attorneys, not court

DISCUSSION TIME! Do we stay above the line? Or do we have to go below the line?

Who is the most vulnerable participant in this scenario?

Who is the most important professional in this scenario?

How proactive is the court in this scenario? And why?

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! www.linkedin.com/in/pkblaw www.facebook.com/indydivorcemediator pbrown@indydivorcemediator.com Telephone: 317-873-4740