Archive for the ‘Type of Document’ Category

Using Initials for Parents’ Names

Monday, March 23rd, 2009

In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (”Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”

Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.

Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.

Posted in Appellate Practice, Family Law, Parenting Plan Evaluations, Uncategorized | No Comments »

Grandparents Prevail Over Long Absent Father

Saturday, March 14th, 2009

In 1996, Mom has a child in Louisiana with Dad. Dad does not know she was pregnant and does not know he is a father. Mom relinquishes custody in Louisiana to her parents, the maternal grandparents. Louisiana court issues order transferring custody to grandparents. Then grandparents, mom and child all move to Montana. In 2006, 10 years after the child’s birth, the grandparents apply for medicaid benefits for the child. Dad is contacted and child support ordered. Dad seeks custody in parenting plan proceedings now in Montana. District Court refuses to grant dad custody, ordering instead a plan that gradually introduces him to the child with supervised visits initially and then a mental health professional to monitor how that is going with the anticipation that dad will first move on to unsupervised visits in Montana and later visits in Louisiana where he still resides. Dad appealed both on the basis of inadequate findings to support the trial court rulings and on constitutional grounds. The Supreme Court affirmed the trial court stating that the findings were sufficient and stating that the appellant had failed to file a motion and brief preserving the constitutional issue on appeal. The case is In Re Parenting of K.A.R. 2009 MT 73N.

Posted in Parenting Plan Evaluations | No Comments »

Sealing of parenting plan investigative reports

Wednesday, February 20th, 2008

The reports of parenting plan investigators appointed under Section 40-4-215 (4) M.C.A. must be filed as part of the court record but “… may, without objection, be sealed.” The investigator must make not only the report generated, but the underlying documents, testing results, names of everyone the investigator spoke with — upon which the report is based. The investigator has broad powers: to obtain medical records of a child (less than 16 years of age) without obtaining the parents’ or the child’s consent. This is clearly a discretionary judicial act, but no standard for ruling is expressed.

With the new Access Rules, best practice is to routinely move to seal such reports and underlying documents.

Posted in Family Law, Medical Records, Parenting Plan Evaluations | No Comments »

Motion to seal parenting plan interviews, reports, investigations, testimony

Wednesday, February 20th, 2008

Section 40-4-216 (4) M.C.A. allows a court to seal interviews, reports, investigations and hearing testimony if it finds that keeping the information secret is necessary to protect the child’s welfare. Ironically, the new Access Rules may make it far easier to seal such records — when the only alternative is internet publication.

Section 40-4-216 (3) allows the public to be barred from a parenting plan hearing if barring the public is in the best interests of the child.

Posted in Family Law, Parenting Plan Evaluations | No Comments »

Cell Phone Numbers

Sunday, February 17th, 2008

At least one court I know is collecting cell phone numbers. I expect this will become common as the only practical way to contact victims, witnesses, and jurors. Not only is there no protection from internet publication of cell phone numbers under the new Access Rules, Section 4.10 (c) specifically forbids any district court or court of limited jurisdiction from adopting any rule restricting the internet publication of these telephone numbers.
Cell phone numbers are, of course, not published in the Dex Telephone Book or competing paper directories. So this information will be quite valuable commercially. Telemarketers, political operatives and others will embrace this new source of information regarding thousands of Montanans. Google and an increasing array of commercial companies can be expected to download and index these cell phone numbers as well.

Posted in Phone Numbers | No Comments »

Medical Records

Saturday, February 16th, 2008

Medical records are not protected from internet publication by the new Access Rules. They SHOULD be protected. As the Access Rule Commentary to Section 4.50 admits, HIPAA does not protect such documents because state courts are not included within the definition of “health care entities”.
“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45 C.F.R. Part 160 and 164. Whether the limitation extends to state court records is not clear, however, state courts are not included within the definition of health care entities that are covered by HIPAA.” See Access Rule Commentary to Section 4.50.
Once a medical record, psychological evaluation, child custody evaluation and other similar documents are admitted into evidence or attached as exhibits to affidavits filed before the courts, they become “court records” under Section 3.10 of the Access Rules. All court records except for records that are expressly not publicly available are slated for internet publication under the Access Rules.
In my family law practice it is not unusual to have psychologists involved to help the court decide contested parenting plan cases. The reports from psychologists performing custody evaluations include a detailed personal history of the adults, the children, psychological testing results, mental health diagnoses and recommendations of the professional for the court.
Why are not medical records, including psychological evaluations and medical and mental health related information categorically protected from internet publication? Why did not the Task Force add these records to 4.50 (c)?
As the Montana Psychological Association comment from June 1, 2006 noted, lots of harm to Montanans can come from unrestricted internet publication of such records.

We should routinely file motions to seal these documents in light of the harm to be done by internet publication.

Posted in Medical Records | 1 Comment »