246 So. 3d 155
Ala. Civ. App.2017Background
- Parents divorced in 2012; they shared joint legal and physical custody of twin children (age 10 at the time of these proceedings).
- Mother filed in Aug. 2016 to modify custody seeking sole physical custody; father counterclaimed likewise.
- Mother moved (Jan. 12, 2017) for appointment of a guardian ad litem (GAL); trial court appointed Sharon Doviet and ordered parties to share GAL fees.
- Mother learned shortly before the May 22, 2017 merits hearing that the GAL had not reviewed the children’s psychologist records and moved to continue so the GAL could determine whether to waive the psychotherapist-patient privilege; trial court denied the continuance and stated it would not allow a GAL to waive a minor’s privilege or be granted access to confidential records.
- Mother and the GAL filed a petition for writ of mandamus in the appellate court asking the trial court be directed to allow the GAL access to the children’s psychological records and to allow the GAL to waive the children’s privilege if in the children’s best interest.
- The appellate court denied the petition, finding the petitioners had not shown a justiciable controversy, had not shown the privilege was asserted or that the GAL had been denied access or had attempted waiver, and had not sought the specific relief in the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a guardian ad litem may access a minor's psychotherapist-patient records | Mother/GAL: GAL should be allowed to review records to decide whether to waive privilege and thereby enable proper trial preparation | Trial court: GAL should not be allowed to waive a minor's psychotherapist-patient privilege and may lack basis to access confidential records | Appellate court: Not decided on merits; denied mandamus because no actual controversy presented, no showing privilege was asserted or denied, and relief not sought below |
| Whether mandamus is an appropriate remedy to obtain guidance on GAL access/waiver of privilege | Mother/GAL: Mandamus should compel trial court to allow GAL access and authority to waive if in children's best interests | Respondent/Appellate court: Mandamus is extraordinary and not available for speculative, future, or advisory issues; petitioners failed to show clear legal right or lack of other remedy | Mandamus denied: petitioners failed to demonstrate a clear legal right, adequate record, or a presently justiciable issue; court will not issue advisory rulings |
Key Cases Cited
- Ex parte Alfab, 586 So.2d 889 (Ala. 1991) (mandamus requirements)
- Ex parte Ben-Acadia, Ltd., 566 So.2d 486 (Ala. 1990) (mandamus may compel exercise of discretion but not control it except for abuse)
- Ex parte Allen, 655 So.2d 962 (Ala. 1995) (discussion of mandamus standards)
- Ex parte T.O., 898 So.2d 706 (Ala. 2004) (only the child may waive the psychotherapist-patient privilege)
- Ex parte Kimbrell, 180 So.3d 30 (Ala. Civ. App. 2015) (mandamus petition must include the evidentiary material necessary for review)
- Case v. Alabama State Bar, 939 So.2d 881 (Ala. 2006) (courts will not decide moot or hypothetical controversies)
- Ex parte Flexible Prods. Co., 915 So.2d 34 (Ala. 2005) (mandamus will not issue based on speculation)
- Foster v. White, 6 So. 88 (Ala. 1889) (extraordinary writs not granted to satisfy curiosity or speculative grounds)