Mental health articles

Involvement of a Treating Mental Health Professional
in a Custody Case
If a custody evaluation is performed, the custody evaluator may or may not have the authority to speak with a parent’s treating mental health professional or to obtain that professional’s records regarding the treatment of a patient. The law differs from state to state.
The patient’s records regarding treatment by the patient’s treating mental health professional may, depending on the state law, be subpoenaed by the attorney for the other party even if there is no custody evaluator.
Some state laws hold that when a parent engages in a custody case, that parent automatically places his/her physical and mental health at issue; therefore, no confidentiality or privileges apply to records of medical doctors or mental health providers (Rosenblitt v. Rosenblitt Anonymous v. Anonymous). Other states take the position that the judge must balance the need for the records or for the testimony of treating mental health providers against the need for confidentiality and privilege.Sometimes the attorney for the client whose records are sought to
be produced may ask the judge to allow certain redactions from the records before the other side may see them or may ask the judge to review the records in chambers (“in camera”) to determine which portions of the records, if any, are relevant to the case and therefore may need to be revealed to the other side. The records are likely to contain many entries that are irrelevant to custody.
A father usually would want to subpoena the wife’s therapy records if he
believed that the records would be detrimental to the mother’s bid for custody or visitation. Normally the mother would want her records to be kept confidential and therefore would not want her records to be subpoenaed. On the other hand, the mother might want her treating physician to testify in order to demonstrate to the
court that any symptoms of her illness that could possibly be problematic with regard to her parenting are absent. If so, at least some of her records might need to be provided to the judge for determination of their relevancy to the case and their need to be shown to the other parent for cross-examination of the treating physician.
State laws differ on this issue as well as on many other issues.

Tags: Health, mental, Mental health