The Wyoming Supreme Court on Thursday sided with a father against a counselor who denied the father access to his 7-year-old daughter’s counseling file, reversed his case and sent it back to the district court.
Wade Loyning and his daughter’s mother were part of a contentious custody dispute over their child in the state of Montana last year while the mother and daughter lived in Park County, Wyoming, court documents say.
The mother took the girl to Neisha Potter at Fern Ridge Counseling for therapy.
Loyning, who was trying to obtain a better custody arrangement with his daughter, pushed for access to his daughter’s counseling records, ultimately getting a court subpoena for them.
Potter resisted, filing a motion to block the subpoena in Park County District Court.
She claimed Loyning sought access to privileged and confidential records of his 7-year-old daughter, and that releasing them “would be contrary to the minor child’s best interests and would destroy the safe place that the minor child has established for herself in counseling,” says the state Supreme Court’s Thursday order in the case.
The Park County District Court judge held two hearings and decided Loyning could have the therapy records, except for the therapists’ treatment notes, interviews, notes of impression or process notes.
The judge said he was erring on the side of caution with regard to the child’s best interests, but did not provide any other basis for denying Loyning’s access, the order says.
The Wyoming Supreme Court disagreed with that move, writing that the Wyoming Rules of Civil Procedure don’t include a “child’s best interests” among reasons to block a subpoena.
Also, Wyoming law gives a parent the authority to waive his child’s medical confidentiality privilege.
Best Interests
A Montana judge overseeing the parents’ original custody dispute already had determined that Loyning could have independent access to the girl’s records and information, the order also notes.
“You know, parents have a fundamental right under the Constitution to be involved in the care, custody and control of their children,” Austin Waisanen, Loyning’s attorney, told Cowboy State Daily on Thursday. “That (Montana custody) judge has probably heard thousands of custody cases at this point in his career, and that’s what he decided.”
Waisanen pivoted to a personal hypothetical, saying he has a young daughter.
“If my daughter tells somebody information, and I ask that person what my daughter told them and they tell me it’s a secret, I’m like, ‘No one gets to have a secret with my daughter unless the law tells them that,’” said Waisanen.
Waisanen did not respond to the counselor or district court judge’s concerns about the child’s best interests, saying those concerns already were vetted in the Montana court.
Tom Keegan, a Cody-based attorney who represented Potter and the counseling clinic in the case, declined to comment to Cowboy State Daily.
He had noted in a Jan. 16 appellee brief that the girl’s counselor was worried that the parents were saying too much to the child about their co-parenting conflict and making statements that could damage the girl’s relationship with a child and a “co-parent.”
“Ms. Potter was further concerned that the parents were attempting to ‘weaponize’ her to ‘take sides,’” the brief adds.
Potter did not immediately respond to a phone message requesting comment late Thursday afternoon.
This story has been clarified to reflect that the subpoena was the main issue in this legal proceeding.
Clair McFarland can be reached at clair@cowboystatedaily.com.
