Ex parte Cherry Grace Sims and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children
Douglas Lawrence Sims In re: Cherry Grace Sims
PETITION FOR WRIT OF MANDAMUS Madison Circuit Court,
Grace Sims ("the mother") and Sharon K. Doviet, the
guardian ad litem appointed to represent the children of the
mother and Douglas Lawrence Sims ("the father"),
filed a petition for a writ of mandamus seeking relief from a
November 14, 2017, order of the Madison Circuit Court
("the trial court"). This is the second time these
petitioners have been before this court.
Ex parte Sims, [Ms. 2160753, Aug. 25, 2017] ___
So.3d ___, ___ (Ala. Civ. App. 2017), this court set forth
the relevant history as follows:
"The mother was divorced in 2012 from [the father]. Two
children were born of the parties' marriage, and, as a
result of the 2012 divorce judgment, the mother and the
father shared joint legal and joint physical custody of the
children. At the time of the entry of the order that is the
subject of this mandamus petition, the two children, who are
twins, were 10 years old.
"On August 29, 2016, the mother filed a petition to
modify custody of the parties' children in which she
sought an award of sole physical custody of the children. In
September 2016, the father answered and counterclaimed, also
seeking an award of sole physical custody of the parties'
"On January 12, 2017, the mother filed a motion for the
appointment of a guardian ad litem to represent the children.
In that motion, the mother alleged that the children were
being treated by a psychologist. She argued that the
children's records of treatment with the psychologist are
privileged and that the children lack the authority to waive
that privilege because they are minors.
The mother sought the appointment of a guardian ad litem for
the purpose of determining whether the children could or
should waive that privilege. On that same day, January 12,
2017, the trial court entered an order in which it granted
the mother's motion and appointed Doviet to serve as the
children's guardian ad litem. ...
"On May 18, 2017, the mother filed a motion to continue
the hearing on the merits, which was scheduled for four days
later, on May 22, 2017. In that motion to continue, the
mother alleged that, two days earlier, she had spoken with
Doviet and had learned that Doviet 'had not made any
attempt' to obtain or review the psychologist's
records pertaining to the children and that, therefore,
Doviet was 'unable to make any informed decision whether
to waive the psychologist-patient privilege' for the
children so that the mother could present evidence to the
trial court regarding 'the treatment of the children, the
children's diagnoses, and the parents' interaction
with the psychologist.' The mother argued that the May
22, 2017, hearing on the merits should be postponed so that
Doviet could have time to make a determination regarding
whether to waive the privilege; the mother maintained that
she was 'unable to properly prepare for trial' unless
Doviet, as the children's guardian ad litem, made the
determination that the privilege should be waived.
"On May 19, 2017, the trial court entered an order
denying the mother's motion to continue the May 22, 2017,
"On June 30, 2017, the mother and Doviet ... timely
filed in this court a joint petition for a writ of
denying the petition for a writ of mandamus in Ex parte
Sims, supra, this court concluded that the mother and
Doviet had failed to demonstrate that any party had asserted
the psychotherapist-patient privilege on behalf of the
children or that Doviet had requested or been denied the
opportunity to review the psychological/counseling records
for the children. Ex parte Sims, ___ So.3d at ___ .
This court also determined that the order from which that
petition for a writ of mandamus had arisen merely advised the
parties as to the trial court's probable ruling if Doviet
had sought in the trial court the relief addressed in the
petition for a writ of mandamus filed in this court.
court entered its certificate of judgment in Ex parte