When a court is crafting a parenting schedule in a case involving the custody of minor children, there are a number of factors the judge is to consider.  One of those factors is the mental and physical health of the parents.  One way lawyers start gathering evidence pertaining to the mental health of the opposite party is to use the discovery process, asking the other party to provide copies of their medical records.

The problem is both state and federal law protect communications between a patient and medical personnel, including psychologists.  These communications cannot be disclosed without permission from the patient, and the patient is under no duty to waive this privilege, even in a child custody hearing where mental health is an issue.

That leaves us with this question:  If the court is supposed to consider the mental and physical health of the parties, but the parties aren’t required to disclose information pertaining to their mental and physical health, how does the court uphold its duty to look out for the best interests of the children?

Disclosure of Mental Health Records

Two different Tennessee Courts of Appeals explored this issue last year, in the cases Herman v. Herman and Culbertson v. Culbertson (links removed). In Herman, the father of the children claimed that the mother had previously been diagnosed with multiple personality disorder, and her condition had been getting worse over the years.  Obviously, he wanted access to her medical records to prove his point, but the mother refused to allow access to them.  The court allowed that the mother was not required to reveal her medical records, but noted that our civil rules of procedure provide a method for the father to compel the mother to submit to a psychological evaluation.

This is true, there is such a rule.  However, a psychological evaluation will cost somebody at least $1,500, or more.  That’s expensive and time consuming, when some of the same information could be gained simply by looking through her records.

Not even a month later, a different Court of Appeals considered a similar situation in Culbertson. In this case, the issues were similar, except that it was the mother who was seeking access to father’s medical information.  In this case, the court recognized the solidity of the privilege of communication between psychologist and patient, and refused to allow the mother access to the records.  The court did, however, order that the information should be provided to the judge so that he could compare the fitness of the two parties and divide the parenting duties.

This leaves us with a conflict between the two Appellate Courts.  One says the records can’t be released unless the patient waives the privilege, the other says that the information can’t be release, except it should be released to the judge of the trial court.

New Legislation

In January, a bill was proposed that is apparently in response to these two cases.  Senate Bill 0028 (submitted by Mae Beavers) would require courts to consider the mental health status of a parent if “there is any medical evidence that a parent has any degree of permanent or temporary mental illness”.  The bill goes on to say that medical records are subject to discovery, and there is a procedure to request the court order the release of the records.

I’m going to hope that this bill is an early draft, as the pronouns in the second page are confusing.  I’ve read the bill many times, and I think I understand who is supposed to file what and when, but the language is a bit of a mess.  Regardless, it looks like the legislature may be weighing the importance of the psychologist/patient privilege against the need for such evidence in child custody hearings.  It will be interesting to see how this issue evolves.

Contact me

The various rules and statutes that control the admission of evidence in your case can be complicated and subject to change.  If you’re involved in a custody case, you need the help of an attorney.   Contact me to find out how I can help you.