Therapeutic Privilege and Custody Evaluations: Discovery of Treatment Records

• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/fcre.12203
• Author: Robert A. Simon,Daniel H. Willick
• Date: 01 January 2016

THERAPEUTIC PRIVILEGE AND CUSTODY EVALUATIONS:

DISCOVERY OF TREATMENT RECORDS

Robert A. Simon and Daniel H. Willick

Mental health professionals play a variety of roles in family law litigation. Each role has its own set of principles, rules, and

responsibilities. It is important therapists understand the implications of their giving input in litigated cases, that they are aware

of the need to obtain proper informed consent from their patients before disclosing confidential therapy information, and that

they understand how their relationship with their patient may be affected by their involvement in litigation. This article

explores the issue of therapeutic privilege in custody evaluation and issues surrounding the discovery of treatment records in

such cases. The competing need for the court to have adequate information to make well-advised orders regarding children

must be balanced against the patient’s privacy and the need to emsure that those seeking therapy at what is a particularly stress-

ful time in their lives are not unduly impacted by concerns that the therapist–patient privilege may be compromised.

Keypoints for the Family Court Community:

Conflicting goals and roles for mental health professionals in custody litigation

Protection of the psychotherapist–patient privilege and therapeutic alliance versus the state’s interest in knowing infor-

mation pertinent to understanding the best interests of children

Legal precedents related to the protection of confidentiality and the psychotherapist–patientprivilege

The importance of informed consent in the disclosure of treatment progress and treatment records

Keywords: Confidentiality; Disclosure; Discovery; Expert Witness; Privacy; Privilege; Psychotherapy; and Roles.

I. INTRODUCTION

1

This article focuses on the various roles mental health professionals may play in marital dissolu-

tion custody disputes and the legal principles governing these roles. Significant tactical advantage

may be obtained from a sophisticated understanding of how the applicable legal principles may inter-

act to impact the confidentiality of psychotherapeutic treatment of participants in a custody dispute.

Mental health professionals may occupy one or more of three distinct roles in child custody disputes.

Each of these roles is defined by distinct legal principles.

Child custody disputes are a common feature of modern marital dissolution. When divorcing

parents disagree about the best interests of their children and cannot agree on a child-sharing plan,

custody disputes unfold. Whereas couples are sometimes able to reach amicable accords about even

complex financial and property issues, the emotional ties to their children can become entangled in

the dynamic between the parents. At its worst, the children of a failed marriage can be viewed by

one or both parents as akin to valuable property to be claimed by each of the spouses as their sole

possession or as property over which they wish to have control. Hence, the courts intervene to deter-

mine what is in the best interests of the children in arranging for how the children’s time shall be

allocated between the parental homes and whether both parents or only one parent will have

decision-making authority over such things as education and health care.

2

The spousal conflicts often

focus upon the psychological well-being of the children and the psychological condition of the

parents. Whatever the case may be, when custody disputes occur, each member of the family, partic-

ularly the children, are at increased risk for emotional distress, dysfunction, and harm.

3

In custody disputes it is not unusual for mental health experts to be retained to offer opinions

about personality dynamics and emotional functioning of members of the family, on the family

Correspondence: dwillick@sbcglobal.net

FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 51–60

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C2016 Association of Family and Conciliation Courts