Dealing With Therapy Privilege

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Dealing With Therapy Privilege

Therapy and Mental Health Records Often Important in Custody Proceedings

Communications with therapists and other health professionals can be a heavily litigated issue in a custody case. One party might feel that these records are crucial to making their custody case. As a result, they might spend lots of time and money trying to obtain these records. As an aside, a party might simply opt for a custody evaluation because a thorough custody evaluation might provide an easier path to obtaining the same information. A custody evaluator will likely want to see prior therapy, mental health and medical records in making any kind of recommendation.

With that being said, some parties might choose to seek these records anyway because the cost and time involved in a child custody evaluation might not be practical in their case. Some courts might also be somewhat reluctant to order a custody evaluation, instead wishing to rely on the opinions and recommendations of a guardian ad litem. Regardless, communication between a person and a therapist may be privileged. Types of communication may include conversations, correspondence, actions, observations, and any information relating to treatment.1

Several states have enacted statutes that allow an exception to the privilege for custody disputes. For example, the Louisiana Code of Evidence provides the following:

When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.2

Other states provide a common law waiver. For example, Kentucky law holds that merely seeking custody of a child automatically waives the psychotherapist privilege. The Kentucky Supreme Court found the following:

Whenever custody of infants is in dispute, the parties seeking custodial authority subject themselves to extensive and acute investigation of all factors relevant to the permanent and, hopefully, proper award of custody. Of major importance is the mental and physical health of all of the parties and whether the child is in an environment likely to endanger his physical, mental, moral or emotional health.3

In Nebraska, by placing his or her fitness to have custody of a child in issue, a parent waives any physician-patient privilege.4 However, in view of the personal and confidential communications made between a patient and a psychiatrist, when a litigant seeks custody of a child in dissolution of marriage proceeding, that action does not result in making relevant the information contained in the file cabinets of every psychiatrist who has ever treated the litigant.5

The Indiana Supreme Court held that a mother placed her mental condition in issue when she petitioned for and was granted custody under the original order, and that her condition remained in issue for custody determinations throughout the children’s minority.6 Further, when a party places a condition in issue by way of a claim, counterclaim, or affirmative defense, she waives the physician-patient privilege as to all matters causally or historically related to that condition, and information which would otherwise be protected from disclosure by the privilege then becomes subject to discovery.7

Other states balance the value of the therapist-patient relationship against the best interest of the child. The Missouri case of Seyler v. Seyler, is instructive.8 There, in a custody dispute, the mother was seeking to admit mental health records of the father intoevidence.9 Missouri’s child custody statute, like most state custody statutes, the standard is the best interests of the child.10 One factor in R.S.Mo § 452.375 is the mental and physical health of all individuals involved.11 Accordingly, the mental health records of a parent would seem relevant; however requests to secure them in the initial trial were denied.12 Enter another local statute. R.S.Mo § 210.140 provides an exception to privileged doctor-patient communications where abuse or neglect has been has been pled.13 An amended petition was filed and while the trial court still denied use of the records, the appellate court overturned the judgment of the trial court and ordered admission of the records.14

In a Texas case, a mother and father were each asking to be appointed conservator of the children with mother asserting that her medical records were not relevant because they did not contain information regarding her parenting history or abilities.15 The court found that the mother’s medical condition, including her personality and bipolar disorders, was relevant to whether appointing her the sole managing conservator would be in her children’s best interests.16 However, the court did not allow all of the mother’s medical and mental health records in evidence, but instead redacted records predating the marriage.17

California has taken one of the strongest positions in favor of the privilege in custody cases.18 The relevant privilege statute contains an exception when the patient puts the condition at issue.19 The Koshman court interpreted this exception as compelling disclosure only where the patient’s own actions instigate the exposure.20 The father argued that because the mother was hospitalized for a narcotics overdose, her records were vital for the court to determine whether she was fit to have custody.21 The court denied the father’s request for the mother’s records, because, since the mother was not the one tendering her condition at issue, the exception to the privilege did not apply.22 The Koshman case has been cited with approval as recently as 2009.23

Overall, it is important that a party competent and licensed to practice law in their state because the laws can vary substantially.  Additionally, parties should not expect to automatically be able to successfully get mental health records admitted. Be certain that you plead any reason as to why they might be relevant such as abuse or neglect.


1 Cherly Garrity Jeffrey Wolf, MCLE Family Law Advocacy § 2-5.

2 La. Code Evid. § 510(B)(2)(d).

3 Atwood v. Atwood, 550 S.W.2d 465, 467 (Ky. 1976).

4 Clark v. Clark, 371 N.W.2d 749, 753 (Neb. 1985).

5 Id.

6 Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990).

7 Id.

8 Seyler v. Seyler, 201 S.W.3d 57 (Mo. Ct. App. E.D. 2006).

9 Id. at 63-64.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

15 Garza v. Garza, 217 S.W.3d 538, 555 (Tex. App. 2006).

16 Id.

17 Id.

18 Emily Miskel and Ike Vanden Eykel, The Mental Health Privilege in Divorce and Custody Cases, available at: http://www.emilymiskel.com/blog/the-mental-health-privilege-in-divorce-and-custody- cases/#_Toc328671274.

19 Koshman v. Superior Ct., 111 Cal. App. 3d 294, 297-99 (1980).

20 Id.

21 Id.

22 Id.

23 Id.

Keywords: Child Custody, Therapy Privilege, Mental Health Records, Therapy Records, Best Interests of the Child


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