If you are seeking a custody modification after a divorce, you need to be aware of both your rights and the rights your children possess. Oftentimes, when parents with minor children get divorced, the children need some type of counseling so they can process the changes their families are facing.
When a minor child needs to see a psychologist, a special privilege develops between the psychologist and the child, similar to that of an attorney-client privilege. This privilege creates a zone of confidentiality between the child and the doctor, allowing the child to speak freely without the fear their parents might discover their conversations.
The only time a psychotherapist must reveal a child’s confidential records to the court is if a child’s mental state is relevant in determining which parent should get custody. Records of parents’ mental states, on the other hand, are usually admissible because mental stability directly relates to a parent’s ability to care for a child.
A clinical psychologist in Birmingham, Alabama, in the case of Ex parte Johnson, just fought and appealed multiple court orders subpoenaing the records of a minor child she treated. Dr. Barbara Johnson treated a child, T.C., when this child’s parents divorced. T.C.’s parents came back to court five years after their divorce for a custody modification.
The father subpoenaed records from Dr. Johnson’s office that dealt with her treatment of T.C. However, Dr. Johnson fought back, filing a motion to quash the subpoena stating that the psychotherapist-patient privilege applied. This privilege meant she did not have to produce the records. The trial court denied her motion.
Dr. Johnson was displeased with the ruling so she filed another motion, but this time with a higher-level court. Essentially, she requested the higher court, the Court of Civil Appeals, command the trial court honor her earlier motion to quash the subpoena so she would not have to give up the medical records. This time, the motion was granted by the Court of Civil Appeals and she did not have to release the child’s records.
The most important thing to remember from Dr. Johnson’s case is that parents seeking a custody modification are the only parties whose mental states are relevant to the case. Therefore, if you have a partner who is trying to use your child’s therapist’s records against you in a custody modification action, remember that the psychologist treating your child is not required to give the records to the court.
Unless the exception applies, a child’s records must remain confidential. If you suspect your partner may be trying to use your child’s therapist’s records, contact Birmingham Divorce Attorney Joseph A. Ingram at (205) 303-1753.