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Touma v. Touma

Decided: March 26, 1976.


Lucchi, J.c.c., Temporarily Assigned.


In this matrimonial proceeding Joel Becker who practices marriage counseling pursuant to N.J.S.A. 45:8B-6(a)(3), moves to quash a subpoena. The parties to this action individually sought counseling from the movant. Thereafter plaintiff husband subpoenaed Becker, whose testimony is sought on the issue of custody, to submit to depositions upon oral examination and to testify at the time of trial.

Plaintiff filed for divorce on the ground of adultery and his wife counterclaimed for divorce based on extreme cruelty. Defendant later withdrew her defense to the adultery count. Both parties seek custody of the four infant children of the marriage.

Becker treated the wife for one year to the present, and he treated the husband for approximately seven months from February to October 1975. The parties entered into a consent order on January 28, 1976 whereby they waived whatever privilege they had by reason of their relationship with Becker. Becker did not appear at the depositions and now moves to quash the subpoena on two grounds.

He first contends that his testimony would serve no purpose since he neither met the children nor considered the parties' fitness as parents. However, testimony by the court-appointed psychiatrist stressed the need for a professional evaluation based on extensive interviews with the parties, to determine the best interest of the children. This court, therefore, will ascertain the usefulness of Becker's testimony at the time of trial.

The second ground presented is the privilege available to marriage counselors.

The principle issue to which this court addresses itself is whether Becker can avail himself of the marriage counselor privilege stated in N.J.S.A. 45:8B-29. It is plaintiff's position that Becker never provided marriage counseling, but rather acted as a psychologist. To support his contention he points to the fact that Becker never brought

the two parties together during consultation. Becker maintains that the services he provided were solely those of a marriage counselor. Although he is not a licensed marriage counselor, he can engage in counseling because he is under the direct supervision of Dr. Thomas C. McGinnis, Ed.D., a marriage counselor licensed by the State of New Jersey.

After reading the affidavits submitted by plaintiff and Becker, the court concludes that Becker did act as a marriage counselor within the statutory meaning.

The practice of marriage counseling is defined in N.J.S.A. 45:8B-2 as:

The rendering of professional marriage counseling services to individuals and marital pairs, singly or in groups, whether in the general public or in organizations, either public or private, for a fee, monetary or otherwise. "Marriage Counseling" is a specialized field of counseling which centers largely upon the relationship between husband and wife. It also includes premarital counseling, preand post-divorce counseling, and family counseling which emphasizes the spousal relationship as a key to successful family living. The practice of marriage counseling consists of the application of principles, methods and techniques of counseling and psychotherapy for the purpose of resolving psychological conflict, modifying perception and behavior, altering old attitudes and establishing new ones in the area of marriage and family life. In its concern with the antecedent of marriage, with the vicissitudes of marriage, and with the consequences of the failure of marriage, marriage counseling keeps in sight its objective of enabling marital partners and their children to achieve the optimal adjustment consistent with their welfare as individuals, as members of a family, and as citizens in society.

Bringing the parties together is not a prerequisite for marriage counseling. The statutory definition includes services to both "individuals and marital pairs." In his affidavit Becker reveals that his work with the parties explored their perceptions of their marriage and its deterioration, their respective emotional states, and their expectations in the roles of husband and wife. The concern of the marriage counselor is not the individual singly, but the marital relationship and the people affected by it. Had Becker engaged

in psychological therapy with the parties, he would have worked with them with respect to personality characteristics. Although there may be overlapping between psychologist and marriage counselor, the two are not the same. While psychological therapy is concerned with the individual, resolution of all the ...

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