Privacy of Mental Health Records in Divorce and Custody Proceedings

Trying to get inside someone’s mind has never been more challenging. We lawyers have to depend upon mental health care providers to tell us what is wrong or right about their patients/our clients. While mental illness, emotional, psychiatric and psychological problems are growing social problems, getting access to the information about someone’s mental health condition has never been harder. This issue is so important that this year it even got the attention of the Tennessee
legislature. Interestingly, communica- tions between psychologists and patients are placed upon the same basis as those provided by law between attorney and client.1 Thus, psychologist communications are confidential and privileged, unless waived.2 Communica- tions between psychiatrists and patients are similarly privileged, with limited exceptions,3 such as:
When a patient raises the issue of the patient’s mental or emotional health;
When a psychiatrist was ordered by the court to examine the patient;
To establish that the patient poses a substantial likelihood of serious harm requiring involuntary hospital- ization; and
Patient made actual threat to phys- ically harm someone and has apparent capability to commit act in the near future.
These limited exceptions form the basis for obtaining mental health records and present a challenge in domestic cases. For example, in custody matters, a court is instructed to consider themental health” of parents and caregivers to determine what is in the child’s best interests.4 In determining a permanent parenting plan schedule, either in a divorce or subsequent modification, the court is also instructed to consider the “emotional fitness” of each parent.5 One factor resulting in restrictions to a parent’s residential time in a temporary or permanent parenting plan is “emotional impairment” that interferes with the parent’s performance of parenting responsibilities such as providing for a child’s emotional, intel- lectual, moral and spiritual develop- ment.6 How is a court able to consider the mental health of parents in custody or parenting time modification cases when parents have a statutory right to privacy over their mental health records?

Written by Siew-Ling Shea. To read the full article, click here.

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