VA Blocks Veteran’s Bid for Joint Custody

July 30th, 2012 by Robert Franklin, Esq.
The Veterans Administration is supposed to assist veterans in a variety of ways.  So why is the VA refusing to allow one of its psychiatrists to testify in Syracuse family court about a father’s fitness for joint custody?  The answer is simple – because it can.  Read about it here (Syracuse Online, 7/26/12).

Shaun Portaleos is a veteran of the war in Afghanistan.  He’s been treated for post-traumatic stress disorder by Dr. Adekola Alao who’s employed by the Veterans Administration.

Now Portaleos is involved in a custody battle with his ex, Gina Shannon, regarding their 11-month-old son.  Portaleos has seen Dr. Alao and believes the doctor’s testimony would help him get joint custody of the little boy.  He’s waived all his rights to doctor-patient privilege, his privacy rights regarding the information, etc.  Both the guardian ad litem and Shannon’s attorney support his desire to have Dr. Alao testify.

But the VA doesn’t.  Why?  Well, their attorney refuses to say and indeed, there seems to be no apparent reason why a doctor treating a veteran shouldn’t be able to provide information about his patient’s fitness as a parent.  In truth, I don’t see how the judge in the case is supposed to decide that matter without Dr. Alao’s input.  After all, who knows more about Portaleos’ mental/emotional well-being than his treating psychiatrist?

None of that matters to the Veterans Administration.  Under United States law, it has the authority to prevent Dr. Alao from testifying, so that’s what it’s doing.  Period.  So far there’s not been a word from the VA’s attorney explaining why it wants to keep the doctor’s information from the court.

But the VA has refused to let Alao testify. That’s in keeping with federal laws that grant agencies like the VA the authority and discretion to make those decisions, according to Assistant U.S. Attorney Paula Conan…

Conan contended [Judge Michael]Hanuszczak did not have the authority to grant [Portaleos’ attorney Vincent] Finocchio’s request for an order to compel the testimony. She contended any order granting that request would amount to “an exercise in futility” on the part of the court.

If such an order is issued, the U.S. Attorney’s Office would likely file a challenge in federal court. The bottom line is that the U.S. government will not consent to letting Alao testify without the permission of the VA and the VA has the legal right to withhold that permission, Conan noted.

When Hanuszczak began questioning if the VA would take the same position if a doctor on staff was being asked to testify in a state court trial addressing a personal injury matter, Conan responded that the nature of the court matter was not the issue.

“This is a matter of their lawful authority and discretion,” she said of the VA and its ruling .

At no time during the brief argument in court Thursday did Conan spell out the exact rationale for the refusal to let Alao testify. She said she also did not address the merits of the decision in her papers to the court.

Outside court after Thursday, Conan declined comment beyond noting she was making the argument in support of the VA’s discretion — as a federal agency — to decline to allow the doctor to testify.

In short, the federal agency that spends billions of dollars a year to supposedly assist veterans who have laid their lives on the line in the service of their country is effectively preventing one of those veterans from getting joint custody of his son because… it can.  No explanation, no rationale, nothing.  It has the power and it’s using it.

As if being a dad in family court isn’t hard enough, now a veteran who’s fighting not only his ex and PTSD has to fight the behemoth federal agency that’s supposed to be on his side.

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