CBA Record July-August 2020
their mental health records. Very few 12-year-olds are so prescient as to know all the possible complications that can result from providing this consent. Indeed, very few adults have the same, yet many parents have attorneys billing hundreds of dollars an hour protecting their rights not only under the IMDMA but under the Mental Health Act. Who advises children of their rights with respect to the confidentiality of their mental health information? How are children told that they have the right to withdraw consent? What happens when a parent signs a consent on behalf of a child and the child turns 12 during the litiga- tion? These questions are moot if §607.6 remains as it was enacted in 2017, consis- tent with the Mental Health Act. What Should the Court Do? We recommend the court do the following with §607.6 in its current form: • Order counseling. Use the example of the Mandziara case, in which one parent attempts suicide. Opposing counsel must petition the court to serve a sub- poena on the mental health treater. If the court finds that the parent’s mental health is relevant regarding parenting, the treater’s records are then sent only to the court. The court then determines if any of the information from the parent’s records is relevant to protecting a child. If it finds this to be the case, the court can order the parent to go into counsel- ing for treatment to protect the child. The parent knows that the therapy is to help, not to be peered into and reported on, and not to be used as a sword in litigation. • Appoint a child representative. If a child is in counseling, or part of reuni- fication therapy, a child representative acting as the child’s advocate can make the appropriate determination if the child’s mental health is relevant in any way. The child representative can also advise the child of his or her rights under the Mental Health Act, thus providing a layer of protection regarding disclosures. • Appoint a 604.10 expert right away. Often, the family court uses a §604.10 expert as a last resort because of the time
and expense involved. However, using a §604.10 expert early will get the court information quickly – even in the form of an interim report – which can be used to provide the court with necessary information and more quickly address the needs of a high-conflict family. • Use Illinois Supreme Court Rule 215(a). This rule allows the court to appoint an expert to make an evaluation of a party when the physical or mental health of a party is at issue. This is also a useful tool for courts. None of these actions are as salacious as hearing a GAL describe a parent’s child- hood abuse in detail, and why that makes him an imperfect parent. But all of these are appropriate steps for the court to take to advance a case and protect the child. “safeguard the family relationship … promote the amicable settlement of disputes … mitigate the potential harm to spouses and their children caused by the process … protect children from exposure to conflict … recognize the right of children to a healthy relationship with parents … continue existing parent-child rela- tionships and secure the maximum What Next? The purpose of the IMDMA is to:
involvement and cooperation of par- ents regarding the physical, mental, moral, and emotional well-being of the children during and after the litiga- tion.” 750 ILCS 5/502. Perhaps the greatest tool judges have is the ability to order the family into a thera- peutic setting, free of lawyers and litigation posturing, and give families a place where they can acknowledge their problems, learn a different approach, apologize and heal. Section 607.6 works – leave it be.
Kathryn L. Ciesla is a principal at Ciesla Beeler, LLC in North- field, practicing exclu- sively in the area of family law. She acts as an advocate for parents and children as a litiga-
tor, a child representative and a guardian ad litem; she is also appointed by courts in Cook and Lake Counties as a mediator and a parenting coordinator.
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