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  • 1.  1) Subpoena Therapist to FRO Hearing and 2) Competency

    Posted 04-17-2019 04:08 PM
    Question:
    1) I have an FRO hearing (seeking restraint from spouse and children) where I made a motion for the court (DeMarzo in Morris) to subpoena the complainant's long-time weekly-met therapist. I was given to Wednesday to brief the subject. 
    I am looking for cases or discussions or anything on subpoenaing the complainant's therapist or her records (duces tecum or better yet, ad testificandum) for a FRO hearing.

    My defense is the complainant is not compliant with her medications and has created her elaborate story from whole cloth; and the detailed, lengthy, multiyear history of alleged predicate acts could best and only be rebutted by testimony from her treating therapist.   

    2) is there a process for a competency check of complainant or require compliance with doctor ordered anti-psychotics in a FRO hearing? 
    Thanks in advance for any help.
    Tom King

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    Thomas King Esq.
    Kinnelon NJ
    (973)750-8348
    [email protected]
    www.njfamily.law www.njdivorce.law
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  • 2.  RE: 1) Subpoena Therapist to FRO Hearing and 2) Competency

    Posted 04-17-2019 04:10 PM

    there is a privilege in the evidence rules you will have to overcome.  you can issue a subpoena for him/her to appear for testimony but each question may be objected to based on privilege.

     

    Alice M. Plastoris, Esq.

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  • 3.  RE: 1) Subpoena Therapist to FRO Hearing and 2) Competency

    Posted 04-17-2019 04:47 PM
    Read Kinsella. That was regarding a Tevis claim (I think, I didn't pull it), and the marriage counsellor privilege couldn't be pierced. But, here, the implications of an FRO imply more due process protections - it's not "just a money issue", it's entry into the registry, etc etc. Still, I can't imagine a judge permitted a therapist to be called as a witness.

    Might you have better luck seeking an evaluation of the plaintiff? Your client could allege what you're saying here, and perhaps you could subpoena her medication / pharmacy records (or, if your client provides the insurance coverage, maybe he could just ask for them via an EOB). If anti-psychotic medications are prescribed and then suddenly the scripts are no longer being filled, then either she was suddenly cured or suddenly non-compliant. An independent evaluator might have better luck getting records from her treating therapist, and there's case law (Devrees? Judge Dilts case from many years ago) that permits discovery in a DV where there's a showing it's necessary for the court to get to the truth.


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