Divorce cases, particularly those involving child custody issues, often can get nasty quickly when one spouse brings up the other’s mental health issues and attempts to compel their spouse’s psychotherapist to testify in court. The party in treatment may protest: “But you can’t do that, our sessions are supposed to be confidential!” Well, yes and no.
As a general rule in Florida, everyone can be compelled to testify in court, either in person or by submitting records (evidence). However, there are exceptions. These exceptions are called privileges. The state has decided some relationships are more important than others and require protection from public disclosure. A psychotherapist/patient relationship is one that enjoys this privilege because, as a matter of public policy, the state encourages people with mental health issue to seek treatment and knowing conversations between patients and their therapists may be made public likely would deter people from seeking treatment.
Of course, there are exceptions to the exceptions. A privilege, even one as important as the psychotherapist/patient privilege, can be waived. If the privilege is waived, then parties to the relationship may be be called to testify.
In the case of a psychotherapist (and this includes all mental health professionals such as psychiatrists, social workers, therapists, psychologists, etc.), conversations with patients are protected as privileged if the following elements can be proven:
1. One party to the relationship must be a psychotherapist (again, this includes various mental health professionals).
2. One party must be a patient of the psychotherapist.
3. The information being requested must be privileged.
4. The person asserting privilege must have standing.
If a party can show each of these statements is correct, then they have established a privilege exists and psychotherapist cannot be compelled to testify, either in person or by producing confidential records.
However, the other party may assert an exception to the privilege exists. Florida law sets forth four exceptions:
1. If the party asserting the privilege is involved in known or suspected child abuse.
2. Baker Act proceedings (proceedings in which someone is involuntarily committed to a mental health facility for evaluation).
3. Subsequent court-ordered evaluation.
4. If the patient relies on his or her condition as a claim or defense in the present case.
In cases of alleged child abuse, the requirement to testify is limited only to information relevant to the accusation of abuse.
As a general rule, a parent’s mental health status, except in the cases noted above, is considered irrelevant in child custody cases, and allegations of a party’s mental instability is insufficient to waive the psychotherapist privilege. The exception is only some catastrophic event (such as attempted suicide) which directly impacts the best interests of the child. Even then, the party seeking to break the privilege must not be able to obtain the information by other means.
But what if the other party was in the room during the time privilege conversations occurred, such as in cases where the parties were in marital counseling? The privilege still stands and another party’s presence does not waive it. Nor does evidence of prior substance abuse and treatment.
Also, it is not enough to merely allege child abuse to waive the privilege when there is no evidence of ongoing abuse.
Privilege may be waived in cases such as:
1. Failure to timely assert privilege.
2. Patient reliance on his or her mental condition for claim or defense.
3. Court-ordered counseling where there is no expectation of privacy or privilege.
4. Endangerment of the child.
5. Voluntary admission to a mental health facility following a calamitous event (such as attempted suicide).
6. The patient poses a danger to him- or herself or others.
Courts often will employ other means of obtaining necessary information rather than waiving of privilege entirely. This could include court-ordered evaluations, a partial release of information, in camera review (the judge reviews the information privately to decide what, if any, information should be released in open court)—even an evaluation by an independent psychiatrist (in cases where the party’s mental condition is at issue). The court also may order parties (and their attorneys) to the case to keep the information confidential or risk sanctions.
When dealing with the mental health issues of one or both of the parties in a divorce and/or child custody dispute, and the issue of psychotherapist privilege, it is critical to understand the complexities of both the statutes and the case law in this area.
The information in this article is not comprehensive, is shared only for education purposes and does not constitute legal advice. If you are dealing with a divorce or child custody case possibly involving mental health issues, we highly recommend you contact an attorney immediately to help you navigate this complex issue.
Sandy Ambrose has 30 years experience handling family law matters. Sandra K. Ambrose welcomes the opportunity to discuss the particulars of your case. Please contact our office today to schedule a confidential appointment.