-- Paul E. Padilla
Last week, I went to trial for a family law case. The trail was based on an emergency motion to restrict parenting time (under C.R.S. § 14-10-129 (4)). While the main issue of the case involved whether a parent posed imminent harm to the children, a major development in the case was based on an evidentiary ruling by the court.
In Colorado, there is a statutorily created psychologist-patient privilege, which means that a psychologist or other professional counselor cannot testify in court without the permission of the patient. This privilege is codified by C.R.S. § 13-90-107(g).
In this case, the patient was a child, so the privilege was held by the parent. Prior to trial, I filed a motion in limine to prevent the counselors from testifying based on the parent’s privilege. However, the court ruled against my motion and allowed the counselors to testify over the objection of the parent.
Despite significant case law in our favor, the court ruled that because the parent had given the child’s elementary school express permission to communicate with and turn the children over to the children's grandparent, the grandparent also held the psychologist-patient privilege for the school counselors. Therefore, once the grandmother consented to the testimony, the parent could not stop it.
This means that if a parent gives a school permission to speak to and release children to a grandparent, the parent may also waive the doctor-patient privilege for the school counselors without realizing it. While there is not a published case on the subject yet, it is important for lawyers to recognize this interpretation of existing case law, and anticipate its consequences.
For attorneys trying to get around the doctor-patient privilege, this may be a persuasive argument. But, for attorneys who are confident in their ability to keep a counselor off of the witness stand, this may serve as fair warning.
Evidence, Family Law, School Counselors, Grandparents, Physical Care, Doctor-patient privilege, Psychologist-patient privilege, Waiver
Last week, I went to trial for a family law case. The trail was based on an emergency motion to restrict parenting time (under C.R.S. § 14-10-129 (4)). While the main issue of the case involved whether a parent posed imminent harm to the children, a major development in the case was based on an evidentiary ruling by the court.
In Colorado, there is a statutorily created psychologist-patient privilege, which means that a psychologist or other professional counselor cannot testify in court without the permission of the patient. This privilege is codified by C.R.S. § 13-90-107(g).
In this case, the patient was a child, so the privilege was held by the parent. Prior to trial, I filed a motion in limine to prevent the counselors from testifying based on the parent’s privilege. However, the court ruled against my motion and allowed the counselors to testify over the objection of the parent.
Despite significant case law in our favor, the court ruled that because the parent had given the child’s elementary school express permission to communicate with and turn the children over to the children's grandparent, the grandparent also held the psychologist-patient privilege for the school counselors. Therefore, once the grandmother consented to the testimony, the parent could not stop it.
This means that if a parent gives a school permission to speak to and release children to a grandparent, the parent may also waive the doctor-patient privilege for the school counselors without realizing it. While there is not a published case on the subject yet, it is important for lawyers to recognize this interpretation of existing case law, and anticipate its consequences.
For attorneys trying to get around the doctor-patient privilege, this may be a persuasive argument. But, for attorneys who are confident in their ability to keep a counselor off of the witness stand, this may serve as fair warning.
Evidence, Family Law, School Counselors, Grandparents, Physical Care, Doctor-patient privilege, Psychologist-patient privilege, Waiver
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