1995 National Legal Research Group, Inc.


The greatest legal controversies occur when two closely protected interests collide. Because of the personal nature of divorce litigation, family law is replete with such clashes. For example, courts must sometimes consider whether to award support to a spouse who is guilty of adultery or other marital fault that caused the breakdown of the marriage. In this case, the needs of the dependent spouse clash with the public policy of not rewarding adultery or other types of marital fault.

This article addresses one specific battle in a war that will never end: the privacy of the individual versus the needs of society. Specifically, this article addresses whether a party in a child custody matter may discover the other party's psychological and psychiatric records. At first glance, it would seem that the best interests of the child require a court to obtain as much relevant information as possible about each party in the custody matter. It would further seem that a person's psychological and psychiatric profile would shed a significant amount of light on that person's ability to provide a loving household for a child. Nonetheless, in order to protect the privacy of individuals who seek counseling, and in order to ensure that people feel free to inform counselors about mental health issues, many states have enacted statutes which would ordinarily prevent one party from discovering the other party's psychological and psychiatric records. The conflict between the privacy rights protected by these statutes and the best interests of the child presents extremely difficult questions of law and policy.

Part I of this article provides a general discussion of the therapist-patient privilege, including its history and its purpose. A solid majority of jurisdictions have determined that the privilege is outweighed by the best interests of the child. Many of these decisions rely upon a provision which permits discovery in any case where a person's mental health has become an issue in a pending action. Some states, however, have simply determined that the child's needs are too great, and the information contained in the records is too probative to prevent discovery. All of these decisions are discussed at length in part II of this article.

Part III of this article considers case law in a minority of jurisdictions which have refused to balance the privilege against the interests of the child. Instead, these jurisdictions have determined that the legislature has already made the choice: the statute prevents discovery. These jurisdictions are few in number, and most of the recent cases allow for discovery.

Finally, the article concludes that there is, in practice, a way to eliminate the controversy while simultaneously satisfying the interests of the child and the party: the court could simply enter appropriate protective orders or order a closed inspection. Hence, but for the statutes, there is no reason to allow the therapist-patient privilege to prevent the courts from obtaining access to this important information.


It should first be noted that the therapist-patient privilege did not exist at common law. Rather, "[i]t was the rule at common law and remains the rule today, that it is everyman's duty to give evidence in a court of law." Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (1978). Thus, the privilege is in derogation of the common law and should be construed narrowly. The court noted this point in Ritt v. Ritt, 98 N.J. Super. 590, 238 A.2d 196 (Ch. Div.), rev'd on other grounds, 52 N.J. 177, 244 A.2d 497 (1967). In Ritt, the wife filed an action for divorce on the grounds of extreme cruelty and neglect. The husband attempted to take a deposition of a doctor who had treated the wife. The doctor specialized in psychiatry. Under the direction of his attorney, the doctor refused to answer questions at the deposition concerning discussions between the wife and the doctor about complaints made by the wife about the husband, about the doctor's treatment of the wife, and other matters. The doctor cited New Jersey's statutory therapist-patient privilege. The husband filed a motion to compel answers to the questions.

The Superior Court of New Jersey, Chancery Division, held that the privilege did not apply to the doctor. In reaching this conclusion, the court noted that "`[t]he common law did not recognize a physician-patient privilege and, although approximately two-thirds of the States have adopted the privilege, New Jersey is not among this number.'" 238 A.2d at 198 (quoting Hague v. Williams, 37 N.J. 328, 181 A.2d 345, 348 (1962)). Furthermore, the court noted that "[i]t is elementary that a statute in derogation of the common law, such as that being construed, must be strictly construed." Ritt v. Ritt, supra, 238 A.2d at 198. Indeed, the court chose to construe the statute as strictly as possible, by concluding that since the statutory privilege applied to "psychologists," and the doctor in Ritt was a "psychiatrist," the statute did not apply to the doctor. Thus, the husband was free to discover information from this doctor. See also Moosa v. Abdalla, 248 La. 344, 178 So. 2d 273 (1965) (there is no constitutional or common-law physician-patient privilege; statutory physician-patient privilege was construed to only apply in criminal cases).

The importance of the decisions in Ritt and Moosa cannot be understated. Basically, these cases indicate that if the legislature of a particular jurisdiction has not enacted a privilege, the privilege simply does not exist.

Although no privilege exists under the Constitution or at common law, the privilege is most desirable. The reason for the need to protect communications between mental therapists and patients was eloquently stated in the case of Smith v. Superior Court, 188 Cal. App. 3d 136, 173 Cal. Rptr. 145, 148 (1981):

Thus, as the court wrote, in order to ensure that people will seek help from psychotherapists when they encounter problems with their mental health, communications between psychotherapists and their patients should be protected from public view.

For the reason articulated in Smith, most states have chosen to enact a privilege in some form. These statutes generally come in three varieties. First, some states have simply enacted a general physician-patient privilege, and courts have held that the statute applies to psychological and psychiatric treatment and records. See, e.g., Ohio Rev. Code Ann. 2317.02; Whiteman v. Whiteman, No. CA 94-12-229, 1995 WL 375848 (Ohio Ct. App. June 26, 1995). Second, other states have enacted statutes which were designed to exclusively protect communications between psychiatrists/psychologists and patients. See, e.g., Md. Cts. & Jud. Proc. Code Ann. 9-109.1. Third, some states have enacted broad statutes which clearly protect communications between patients and anyone involved in the "healing arts." See, e.g., Va. Code Ann. 8.01-399. Nonetheless, as the next section indicates, although states have provided protection for communications between therapists and patients, most courts that have considered the issue have concluded that the statutes are inapplicable in child custody matters.


As noted above, most jurisdictions allow discovery of psychological or psychiatric records in child custody cases. Courts in these jurisdictions cite at least one of two possible reasons for this exception. First, the privilege is inapplicable in any case where the patient's mental health is an issue. Second, the best interests of the child outweigh the need for the privilege.

First Reason: Mental Health Is An Issue In Any Child Custody Case

In custody cases where a patient is a party, the patient makes an affirmative request that he or she be given custody of the parties' child. Thus, many courts conclude that when child custody is an issue, the mental condition of the parents is relevant and indeed crucial to determining the outcome of the case. Simply put, the court needs to know the facts regarding the patient's mental condition so that it can determine whether he or she is a fit and proper custodian for the parties' child. Because the patient's mental condition is essential to resolving a legal claim made by the patient, the therapist-patient privilege does not allow the patient to conceal medical records from counsel and from the court.

The cases generally hold that when a parent makes an affirmative request for custody of a child, that request makes the parent's mental condition an issue in the case. Under the general law of privilege, privilege does not apply when the privileged fact is relevant to a claim made by the person who seeks to assert the privilege. Werner v. Kliewer, 238 Kan. 289, 710 P.2d 1250 (1985). Thus, the general rule is that the therapist-patient privilege does not apply in custody cases.

The most recent case to reach this result is Whiteman v. Whiteman, No. CA94-12-229, 1995 WL 375848 (Ohio Ct. App. June 26, 1995). In Whiteman, the husband requested custody of the parties' two children. The wife then filed a motion for production of the husband's psychiatric records, and the husband refused to comply, asserting that the information was subject to Ohio's psychiatrist-patient privilege. The trial court concluded that the privilege was inapplicable because the husband had requested that he be awarded custody of the parties' children. The Ohio Court of Appeals agreed that where a patient engages in a child custody matter, the patient has waived any claim of privilege:

1991 WL 375848 at 3 (emphasis added; citations omitted). Hence, if a party seeks custody of a child, that party automatically places his mental condition at issue, and the therapist-patient privilege is inapplicable.

The same result was reached in Owen v. Owen, 549 N.E.2d 410 (Ind. Ct. App. 1990). In Owen, the wife was awarded custody of the parties' children, and thereafter began to receive treatment for a mental disorder. The husband then filed a petition for a modification of custody, and he sought discovery of the wife's psychological records. The trial court refused to order the discovery of these records because of the physician-patient privilege, but the Indiana Court of Appeals reversed:

Id. at 416 n.2 (emphasis added; citations omitted). Hence, because the court in a child custody matter must consider the physical and mental condition of all individuals involved, the parent's mental condition is an issue and the therapist-patient privilege is inapplicable.

The court reached a similar conclusion in Kirkley v. Kirkley, 575 So. 2d 509 (La. Ct. App. 1991). In Kirkley, the parties separated and the wife filed an action for sole custody of the parties' minor child. In response, the husband also requested sole custody of the child. During discovery, the wife attempted to depose a physician who had treated the husband. At the deposition, however, the husband objected, claiming that the testimony sought by the wife was privileged. The wife argued that the physician-patient privilege was waived when the husband placed his health at issue by requesting custody of the child. After a hearing, the trial court ordered the husband to release all information concerning his physical or mental health. Id. at 510.

On appeal, the Louisiana Court of Appeal held that the privilege was inapplicable in a custody matter. The court noted that in a child custody matter a contestant's "physical and/or mental conditions are essential elements to his action for" custody of the child. Id. Furthermore, in order to determine the best interests of the child,

Id. at 511. Therefore, because a contestant's mental condition is an issue in a child custody matter, that contestant may not assert a therapist-patient privilege and refuse to disclose information concerning his mental condition.

For other cases where the court concluded that because the parties' mental conditions are issues in child custody cases, mental health records are discoverable, see, e.g., Critchlow v. Critchlow, 347 So. 2d 453 (Fla. DCA 1977); In re Marriage of Lombaer, 200 Ill. App. 3d 712, 558 N.E.2d 388 (1990); Atwood v. Atwood, 550 S.W.2d 465 (Ky. 1976); Husgen v. Stussie, 617 S.W.2d 414 (Mo. Ct. App. 1981); Proschold v. Proschold, 114 Misc. 2d 568, 451 N.Y.S.2d 956 (Sup. Ct. 1982); In re Marriage of Nordby, 41 Wash. App. 531, 705 P.2d 277 (1985). See also 2 J. Atkinson, Modern Child Custody Practice 11.05 (1986) (because records concerning a contestant's mental condition may reveal useful information, such records are discoverable).

Second Reason: The Best Interests Of The Child Outweigh The Need For The Privilege

In any custody case, the child and the public have a strong interest in making certain that the child is placed with the best possible custodian. This interest is so strong that it overwhelms any interest either parent might normally have in keeping his or her psychiatric records confidential. Thus, in child custody cases, courts will often overlook the policy of the patient-mental health professional privilege in favor of requiring the disclosure of mental health records.

For two reasons in child custody cases, records of a parent's mental health are particularly probative of whether the child would prosper in that parent's custody. First, unlike most other evidence in custody cases, these records were not made in anticipation of a custody battle. Thus, the parent has no incentive to lie about his or her mental state to the therapist, and the communications are likely to be truthful. In contrast, if a court requires each parent to submit to a court-appointed mental examination, each parent has an incentive to paint a rosy picture of his or her relationship with the child.

Second, when a parent obtains the services of a psychologist or psychiatrist, his or her main goal is to get well; his or her main goal is not to win a custody battle or gain some other advantage in a divorce proceeding. Thus, the parent will candidly speak about his mental state to the therapist in the hope that the therapist can treat the parent's condition. Therefore, the discussions between the parent and the mental health professional will reflect the parent's true state of mind. Hence, the best evidence of the parent's ability to provide a stable home for the child may be produced from the parent's mental health records. Therefore, the court should be able to examine these records.

The court articulated this policy directly in In re Marriage of Kiister, 245 Kan. 199, 777 P.2d 272 (1989). In Kiister, a dispute arose after the divorce with respect to the husband's visitation rights. As part of that dispute, the wife filed a motion to compel discovery of the husband's medical and psychological counseling records. The trial court refused to compel this discovery, but the Kansas Supreme Court reversed. The court began by noting that subject to certain exceptions, a patient may refuse to disclose confidential communications between himself and a mental health expert. 777 P.2d at 275. Nonetheless, the court concluded that "when [the husband's] right of confidentiality is weighed against the best interests of the children, the right of confidentiality must give way." Id. Therefore, because the best interests of the child are the paramount concern in a child custody matter, the therapist-patient privilege did not apply.

The court reached a similar conclusion in Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (1978). In Perry, the parties were parents of an 11-year-old son. The parties began suffering from marital difficulties. In order to resolve these difficulties, they obtained counseling. Eventually, the wife stopped going to counseling sessions, but the husband continued seeing the therapist. The counseling failed and the parties eventually divorced. In the custody matter, the wife filed a motion in which she requested that the husband furnish her written authorization for the disclosure of his mental health records. The husband opposed the motion, alleging that the communications "were made with the expectation of confidentiality and are privileged." 403 N.Y.S.2d at 384. The trial court granted the wife's request for the disclosure, and the husband appealed.

On appeal, the court agreed that the wife should have access to the husband's mental health records. The court first recognized the importance of "encouraging the patient or client [to] fully disclose the nature and details of his illness or his emotions without fear of later revelation by one in whom he placed his trust and confidence." Id. Nonetheless, the court believed that "[p]rivileged communications should not be disclosed unless `the injury that would inure to the relation by the disclosure of the communications [is] greater than the benefit thereby gained for the correct disposal of litigation.'" Id. at 385 (quoting 8 J. Wigmore, Evidence 2285 at 527 (McNaughton rev. ed. 1961) (emphasis in original)). Based upon this standard, the court ruled that because a par)ent's mental state is of "great importance" in a child custody matter, the records should be disclosed. 403 N.Y.S.2d at 385.

If there is a particular mental illness, such as an addiction to drugs or alcohol, from which one party believes that the other party suffers, unless it can be shown that other records are relevant, discovery of only the records related to the particular mental illness should be allowed. This rule is especially impor tant in a custody modification matter where a party alleges that because the custodial parent is suffering from an addiction or other mental problem, a substantial change in circumstances has occurred which requires a custody modification. The court reached this conclusion in DeBlasio v. DeBlasio, 187 A.D.2d 551, 590 N.Y.S.2d 227 (1992). In DeBlasio, the divorce decree awarded custody to the wife. Several years later, the husband applied for a change of custody. The husband filed a motion in which he requested an order compelling three hospitals to produce "all records relating to their treatment of the defendant former wife in connection with drug addiction or drug dependency, including alcohol addiction or alcohol dependency." 590 N.Y.S.2d at 228. Although these records appeared to be obviously relevant and important in the child custody matter, the Supreme Court of Nassau County, New York, refused to order the hospitals to release the records. The husband appealed.

On appeal to the New York Appellate Division, Second Department, the court reversed the trial court and ordered the three hospitals to release the wife's mental health records to the trial court. The appellate division wrote: "Under the particular circumstances of this case, we conclude that the defendant's interest in preserving confidentiality must yield to the paramount interest of protecting the well-being of the parties' young child[.]" Id. The court only required, however, that the hospitals release records related to the wife's drug or alcohol addiction. Thus, rather than ordering a blanket release of all mental health records, a court should only require the release of mental health records that provide evidence of a change in circumstances or records that affect the best interests of the child.

For additional authority where the court held that the best interests of the child required release of mental health records, see, e.g., Critchlow v. Critchlow, 347 So. 2d 453 (Fla. DCA 1977); Cheatham v. Rogers, 824 S.W.2d 231 (Tex. Ct. App. 1992).


A small minority of jurisdictions refuse to require the patient/party to release his or her records in a child custody matter. Usually, the court simply notes that the privilege exists and does not consider the best interests of the child or the fact that the parents' mental states are issues in a child custody matter.

One court which reached this conclusion was the Supreme Court of Georgia in Kimble v Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977). In Kimble, the husband and wife engaged in a bitter divorce proceeding. "Throughout the course of this litigation, there were numerous motions, applications for contempt, and orders filed." 239 S.E.2d at 676. A major issue in the proceeding was the custody of the parties' five children. During the course of the proceedings, the husband filed a motion to allow the deposition of the wife's psychiatrist. The trial court denied this motion. From this denial, the husband appealed.

The Supreme Court of Georgia affirmed the trial court's decision to refuse to require the psychiatrist to submit to the deposition. Interestingly, the court cited the privilege statute and the policy behind the statute, but the court did not consider the interests of the children:

Id. Thus, if the court only considers the privacy interests of the patient, it is quite appropriate for the court to refuse the request for discovery of the patient's past medical history. See also In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988) (in custody modification matter, denying order authorizing release of all information obtained by psychiatrist who had counseled both parties was not an abuse of discretion).


As the above authority illustrates, the overwhelming majority of courts that have considered the issue have determined that because a party's mental state is an issue in a custody matter, or because the best interests of the child so require, a party may be required to disclose mental health records.

The court is not required, of course, to remain totally blind to the policies behind the privilege statute. Mental health records should remain as confidential as possible, consistent with the need for counsel and the court to review those records for purposes of the action before the court. Thus, there are two ways that the court may allow for discovery while simultaneously protecting the interests of the party/patient. First, when allowing for discovery, the court should enter an appropriate protective order that would prevent the disclosure of the other party's records to anyone other than the parties, their counsel, their expert witnesses, and the court. See generally Kirkley v. Kirkley, 575 So. 2d 509 (La. Ct. App. 1991).

Second, it is quite probable that the party/patient's records will contain matters that are completely irrelevant to the custody proceeding, but which may be a source of embarrassment for the party/patient. For example, perhaps the party discussed some mistakes that the party committed as a child which were not repeated as an adult. In such cases, the party's interest in protecting these matters would exceed the needs of the children for their release. To prevent the disclosure of clearly irrelevant matters, the court should conduct a closed inspection of the records. In this way, the court can "weed out" unimportant communications while allowing the other party to view relevant matters.

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