Therapist Privilege in Custody Cases

• Jurisdiction: Colorado,United States
• Citation: Vol. 15 No. 1 Pg. 46
• Pages: 46
• Publication year: 1986

15 Colo.Law. 46 Colorado Lawyer 1986.

1986, January, Pg. 46. Therapist Privilege in Custody Cases

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46

Vol. 15, No. 1, Pg. 46

Therapist Privilege in Custody Cases

by Gay Niermann and Barbara A. Stark

In determining the best interests of a child in a custody case, CRS § 14-10-124(1)(e) specifies that, among other factors, the court is to consider the "mental and physical health of all individuals involved." Also, CRS § 14-10-127(1) specifically authorizes custodial evaluations for the purpose of submitting to the court recommendations concerning custodial arrangements for the child. However, other than to state that "the evaluator may consult any person who may have information about the child and his potential custodial arrangements," the statute does not specifically address the issue of whether or not a therapist's privilege is waived in a contested custody case.(fn1)

In general, CRS § 13-90-107 specifies the circumstances under which such a privilege prohibits mental health professionals from disclosing their patient's confidential information without the permission of the patient. "Therapist privilege" includes all mental health privileges applicable pursuant to CRS § 13-90-107. In general, where no exceptions are specifically enumerated by the statute, protected information may be disclosed only as a result of an express or implied waiver.(fn2) The burden of establishing the waiver is on the person seeking to overcome the privilege.(fn3)

The Parent's Privilege

In Clark v. District Court, the Colorado Supreme Court stated that "[a] waiver must be supported by evidence showing that the privilege holder, by words or conduct, has expressly or impliedly forsaken his claim of confidentiality with respect to the information in question."(fn4) An express waiver of the privilege would be accomplished by the execution of a release of information to the treating therapist. Where such an express release is not executed, the greater concern is determining whether or not the filing of a motion for custody or modification of custody---or responding to the initiation of such proceedings on the part of the other parent---constitutes an implied waiver of the privilege.

While a majority of states recognize a general therapist privilege, few have addressed whether that privilege may be waived, other than expressly, in a child custody proceeding. A handful of states have legislation dealing with this question and a few also have considered the...