Mom is mentally ill and emotionally abuses children. Dad is good parent. He resides in California. Court orders permanent placement in California with dad. Kids thrive there. Mom is excluded from any contact until she gets mental health treatment. This is final resolution of case as far as DPHHS is concerned. A few years later, the mom unexpectedly shows up in California in violation of the order. Dad files the order as a foreign judgment in California and the time period for mom to object passes. Then mom files a motion to dismiss the proceedings in Montana. The majority felt this should have been construed as a motion to transfer jurisdiction. the district court, however, treated it as a motion to dismiss the final judgment and denied it. Appealed on jurisidictional grounds. Court majority decided UCCJEA overruled a more ambiguous title 41 jurisdictional provision (left over from the old UCCJA) and held that jurisdiction should have be transferred to California. Curious in that mom had not filed anything in California courts that would give rise to the issue. Dissent argued district judge had ruled correctly. Essential holding was UCCJEA governs abuse and neglect proceedings and if neither party nor the children reside in Montana (mom had moved to Minnesota), then although the order remained valid and enforceable by California courts until California modified the order, Montana no longer had jurisdiction.
Marriage of Pilskalns 2008 MT 221N
June 20th, 2008Bozeman couple lived together for a number of years, bought and remodeled a home. They married, then sought divorce 2 years later. District Judge adopted $250,000 value for house and awarded to wife, later amended judgment to require her to pay $48,000 to husband to equalize division of property and ordered wife to sell the home if she couldn’t pay. She sold the home for $220,000 then filed motion for new trial based on newly discovered evidence. Denied. She also complained that she did not get Maggie the dog, whom she claimed was given to her as gift from husband. She alternatively claimed best interests of the dog required award to her. Supreme Court affirmed the District Court.
Protected: Forms: Privacy Draft Proposals
March 27th, 2008Forms for Missoula State Bar Seminar, March 28, 2008
March 24th, 2008If you are a lawyer registered for the Missoula Family Law Seminar of March 28, 2008, I have placed the electronic versions of my proposed Special Interest Parenting Plan Forms on the “Forms” Page listed on the right of your screen. If you have forgotten the password, please email me at corbinhoward@corbinhoward.com. Read the rest of this entry »
Protected: FORMS: Parenting Plans
March 24th, 2008Social Security Numbers
February 20th, 2008Section 4.50(c) of the Access Rules forbids any publicly available court record from containing the full social security number of an individual. Section 40-4-105 M.C.A. requires the social security numbers of the persons subject to a decree of dissolution to be “recorded in the records” — made a part of the court file. However, if a litigant requests, the clerk of court must keep the social security number confidential. See Section 40-4-105(6) M.C.A.
Sealing of parenting plan investigative reports
February 20th, 2008The 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.
Motion to seal parenting plan interviews, reports, investigations, testimony
February 20th, 2008Section 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.
Cell Phone Numbers
February 17th, 2008At 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.
Medical Records
February 16th, 2008Medical 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.
