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January 22, 2023 From the Editor in Chief

From the Editor in Chief Winter 2023

Kathleen A. Hogan

Not a week goes by without at least one of my clients asserting that the opposing party has a mental illness of some kind. Similarly, it is rare to get through a week without at least one of my clients saying or doing something that others might consider strange to say the least. There is no doubt that involvement in domestic relations proceedings can make people “crazy.” It does not help that terms taken from the mental health field have become such a part of our common vocabulary that many such terms may have a colloquial meaning that is very different from its clinical definition. The challenge for us as the lawyer is to find a way to distinguish the colloquial name calling from the true clinical issues, and then to consider if or how the latter category might impact our representation and duties. Some consideration also should be given to our own self-preservation. Does dealing with families in crisis have the potential to impact their lawyers as well? We have turned to an array of experts to provide a primer on mental health issues for the family lawyer.

After nearly 40 years as a forensic psychologist in child custody disputes, Dr. Robert Simon notes, in his article ”Personality Disorders,” how “the stresses and rigors of child custody litigation can make even the most psychologically healthy person appear to have the most worrisome personality disorder.” He provides an overview of personality disorders so family law attorneys can have a basic understanding but cautions against jumping to conclusions or labeling co-parents according to a diagnosis; instead he encourages attorneys to proceed in a case based on the co-parent’s behaviors and interactions.

In “Understanding How Your Client’s Personality Disorder Affects Your Case,” licensed psychotherapist Stephanie Newberg dives a little deeper into what the different types and clusters of personality disorders are, from borderline personality disorder, narcissistic personality disorder, obsessive compulsive disorder, and more, and how having a client or client’s spouse with a personality disorder can correlate to higher-conflict divorces and a difficult attorney-client relationship.

“What Family Lawyers Should Know about Brain Injury” has been written by Stewart M. Casper, a lawyer who specializes in traumatic brain injury (TBI) cases. He lays out the physical, mental, emotional, and sleep symptoms of TBI. He urges family law attorneys with a client—or the spouse or child of a client—who has a history of a concussion, a TBI, or any brain injury to seek out the appropriate specialists and experts to assist in this technical area because it has wide implications on daily function, from the ability to work and parent.

“Divorcing an Unseen Illness” has been written by Rebecca A. Iannantuoni. Citing the recent statistic from the National Alliance on Mental Illness that one in five adults in the United States experiences some form of mental illness each year, the author posits that it’s no wonder mental health plays a role in many couples’ marriage conflicts. She details the ways that mental health issues can impact everything from property division to child custody, especially if there is a medical determination or judicial finding of incompetency due to mental illness. She also urges respect and civility in dealing with issues surrounding mental illness to keep an already stressful situation from becoming even worse.

When credible allegations are made against an estranged co-parent’s mental capacity to parent, experts, including forensic psychologists, may have to be called. In “Personality Testing and Clinical Judgment when using the MMPI in Child Custody Evaluations,” the psychologist Dr. Gerald F. Bellettirie gives an overview of the process an evaluator takes, from the personality tests, including the Minnesota Multiphasic Personality Inventory, to test administration, scoring, and interpretative reports. He notes that some question the reliability of such testing but that a skilled forensic psychologist knows the pros and cons involved. He further explores the impact of such testing on expert testimony and cross-examination.

Stacy D. Heard, in “Parenting Plans Involving Mental Health Issues,” shares how retaining a parenting evaluator in a custody dispute where parent mental health issues are known or suspected is essential to protecting children. These experts, she explains, can identify specific mental health problems, determine how and whether they may affect the parent’s ability to care for the child, and screen for domestic violence, substance abuse, and child maltreatment. Based on the evaluator recommendations, a family law attorney can draft a parenting plan that takes the impaired parent-child bond into account while putting the child’s best interest first.

“HIPAA for the Family Law Attorney” by Laura W. Morgan gives family law practitioners the information they need to safely handle their client’s health records, including mental health records, and tips for how to obtain protected health information from a covered entity pertaining to the opposing party (hint: ask for an authorization for disclosure; she even provides a sample Authorization to Disclose Protected Health Information form). She also dispels common misconceptions about the Health Insurance Privacy and Accountability Act (HIPAA) Privacy Rule and mistaken notions of privilege.

Julie A. Auerbach’s article “Discovery of Mental Health Records in Family Law” covers the various legal issues that arise when balancing the privilege of confidential mental health records against drafting a custody order that is in the best interest of a child. Discussing topics ranging from the applicability of privilege to different mental health providers, the discovery of mental health records of children, what information in mental health records is protected, the duties of the treatment provider, express or implied waiver of privilege, and guardian ad litem considerations, she cautions that different states take different approaches to mental health records in custody litigation, so practitioners should consult their own state and possibly others to support their position on an issue.

Lawyer well-being consultant and speaker Kendra Brodin has written “Intervening Upstream: Why Leaders Hold the Key to Preventing Burnout on Their Teams.” She calls on firm leaders to recognize the burnout crisis in the legal profession and to take proactive steps now to change it. Having seen the onus put on lower-level attorneys to learn how to better manage their stress, Kendra instead sees the solution to lawyer burnout starting at the top, with firm leaders creating a workplace culture that values well-being and setting a good example by taking care of their own physical and mental health. The fruits of this labor, she says, will be less turnover, which is good for the bottom line, and “healthier individuals, teams, organizations, and, ultimately, a healthier legal profession.”

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Kathleen A. Hogan

Denver, CO

Kathleen A. Hogan is a principal with Hogan Omidi, PC, in Denver, Colorado, and Editor in Chief of Family Advocate.