8.13 Discovery

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

8.13 DISCOVERY

8.1301 In General. Discovery in the circuit court is governed by Part IV of the Rules of the Supreme Court of Virginia (the Rules). ¹²⁰ Discovery in the juvenile and domestic relations district court is more limited than in the circuit court. Rule 8:15 of the Rules permits discovery in the juvenile and domestic relations district court upon motion to the court and a showing of "good cause." Except for depositions, the other discovery tools provided in Part IV of the Rules are available. ¹²¹

Where a child custody or visitation dispute arises as a result of the recent separation of the child's parents, the parties are likely to know a great deal about each other's lives. Accordingly, formal discovery concerning custody matters may be less extensive than the formal discovery needed to fully develop the financial dimensions of a divorce suit. But child custody and visitation disputes may arise in other contexts that are more likely to require formal discovery. Parents who have been separated for a long time but who have not sought a divorce may find that they are not clear about the current living circumstance of the other parent. Parents who are unmarried or who knew each other only briefly before they married may also need more extensive discovery in order to provide the court with the information it needs to make a responsible decision. Additionally, custody and visitation disputes involving third parties, such as grandparents or other nonparents, may involve parties who know little about each other.

Interrogatories may be used to gather basic information. ¹²² A subpoena duces tecum or request for production is also a useful discovery tool in a juvenile and domestic relations district court proceeding. Although depositions are the preferred method for exploring issues surrounding child custody and visitation disputes in circuit court because the questioner can easily pursue additional information in response to answers provided by the deponent, they are not permitted in the juvenile and domestic relations district court. ¹²³

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8.1302 Access to Health Information.

A. In General. Communications between a patient and a physician are privileged. ¹²⁴ The privilege is waived, however, where the party's condition is "at issue" in a civil case. It may be argued that as a matter of law, a parent's physical and mental condition always is at issue in a child custody or visitation dispute because the court is required by statute to consider the "physical and mental condition of each parent" in determining the best interests of the child. ¹²⁵ In these cases, traditional principles of privilege law allow information otherwise protected by the physician-patient privilege to be disclosed in formal discovery and through testimony at trial. ¹²⁶ As important as it is for the court to receive reliable evidence of a parent's physical and mental condition, it also is important for a parent suffering substance abuse or mental health problems to be able to receive effective treatment. Treatment of the parent relates directly to the child's welfare. Proponents of effective treatment programs for patients with substance abuse and mental health problems argue that patients must feel free to speak with their therapists in complete confidence. These competing policies are reflected in the complex set of requirements that must be satisfied before access to health records is granted.

Section 32.1-127.1:03 of the Virginia Code addresses the privacy of an individual's health records and sets out procedural protections designed to safeguard the individual's privacy through the formal discovery process. ¹²⁷ A "health record" refers to materials maintained by a "health care entity" regarding "health services" provided to an "individual." The "health record" also includes the substance of communications made in confidence by the individual to the health care provider in connection with the health services. Each of these terms is quite broadly defined. ¹²⁸ Records regarding diagnosis and treatment of physical problems, substance abuse problems, and mental health problems all receive the protections afforded under the statute. Substance abuse records and mental health records also receive additional protections under separate state and federal laws.

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B. Health Records. Because of the individual's right of privacy in the content of the individual's health records, merely requesting that the records be produced pursuant to a subpoena duces tecum is insufficient in most instances. The health records of an opposing party ¹²⁹ may be discovered in a child custody or visitation case when the physical or mental condition of that person is "at issue" in the case. When one of the parents has a serious history of physical or mental health disabilities, the parent's condition is arguably at issue as a matter of law. ¹³⁰ Additionally...