Psychiatric Ploys in Family Courts

Florida Psychotherapist Patient Privilege 

Protecting Mental Health Records in Divorces and other Family Law Cases

Divorce and family law cases sometimes get ugly.  And, in ugly cases, it is not uncommon for one or both of the parties to have a personality disorder or other mental health condition.  Under certain circumstances, a party's mental health is legitimately relevant to a proper determination of child custody or alimony.  Many times, however, there are improper motivations for seeking confidential mental health records and information.  Your family law attorney should know when this evidence is subject to discovery.

A party to a divorce or family law proceeding normally has the right to prevent disclosure of communications or records made for the purpose of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.  See Fla. Stat. § 90.503(2).  This privilege applies to communications between a patient and a psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.  Id.  The term "psychotherapist" is broadly defined, and includes doctors, psychologists, therapists, social workers, drug and alcohol abuse counselors, and nurse practitioners who are engaged primarily in the diagnosis or treatment of a mental or emotional condition. See Fla. Stat. § 90.503(1)(a).

This psychotherapist-patient privilege, however, is not absolute.  In a child custody dispute, the mental and physical health of both parents is a factor that must be considered by the trial judge in determining the best interests of the children. See Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st DCA 1996).  A party does not waive the psychotherapist-patient privilege merely by seeking child custody. See Leonard, 673 So. 2d at 99.  But, in situations where a calamitous event such as an attempted suicide occurs during a pending custody dispute have courts have found that the mental health of the parent is sufficiently at issue to warrant an exception to the statutory privilege. See, e.g.,Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984)Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977).

In extreme circumstances, evidence concerning the party's mental health is so vital to a proper determination of custody that a patient-litigant exception to the privilege is justified.  Id.  The rationale for this exception is that a litigant waives the psychotherapist-patient privilege by proceeding on a claim for custody where the party's mental condition is an essential element.

Absent a "calamitous event," the law requires courts to preserve the privilege. See, e.g., Koch v. Koch, 961 So. 2d 1134, 1135 (Fla. 4th DCA 2007). Courts will not find a waiver of the privilege based on mere allegations of mental or emotional instability. See Leonard, 673 So. 2d at 99. Competent substantial evidence is required. "To hold otherwise would eviscerate the privilege; a party seeking privileged information would obtain it simply by alleging mental infirmity." Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989).

If evidence of mental health is still necessary in a custody case, the more appropriate method of securing the information is to require an independent psychological or psychiatric examination of the parent or parents. Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992). In this way, the trial court balances the need to determine the parents' mental health as it relates to the best interest of the child, and the need to maintain the confidentiality between a treating psychotherapist and the patient.  Id.

Courts have also upheld the psychotherapist-patient privilege when a parent is trying to obtain information or records concerning a child's mental health. See Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 307 (Fla. 4th DCA 2001)see also Kasdaglis v. Dep't of Health, 827 So. 2d 328 (Fla. 4th DCA 2002) (holding that social worker is under no obligation to furnish privileged therapy records of a sixteen year old to the child's mother without the child's consent).  The statutory privilege applies to children, and parents do not have standing to waive the privilege.  See Attorney ad Litem for D.K., 780 So. 2d at 307.   If a child lacks the age or maturity to make a decision concerning the waiver or invocation of the privilege, the court should appoint an attorney ad litem for the child.  Id. at 308.

In Attorney ad Litem for DK, the court explained its reasoning:

We recognize the tension apparent in the law between the rights and responsibilities of parents and the rights of children. Certainly, to promote strong families, parents should be involved and active in the lives of their children, including their health care, for which the parents are held responsible. Unfortunately, sometimes the parents are the cause of abuse, both emotional and physical, of their children. Allowing parents complete access to their children's health care records under all circumstances may inhibit the child from seeking or succeeding in treatment. The tension between the child's need for confidentiality and privacy to promote healing may conflict with the need of the court for information to inform its judgment as to the child's best interest. 

See Attorney ad Litem for D.K., 780 So. 2d at 308.  Courts have also held that even a court appointed guardian ad litem for the child may be excluded from accessing the child's confidential mental health records.

If you have questions about how mental health issues might affect your rights in a family law case, contact an experienced Florida family law attorney.

Attorney David Schorr slapped a court-appointed shrink with a defamation lawsuit for telling the judge deciding a custody battle with his estranged wife that he was an unfit parent — for refusing to take his son to the fast food joint for dinner.


“You’d think it was sexual molestation,” Schorr, 43, told The Post Thursday. “I am just floored by it.” Schorr says in his Manhattan Supreme Court suit that E. 97th Street psychiatrist Marilyn Schiller filed a report saying he was “wholly incapable of taking care of his son” Liarand should be denied his weekend visitation over the greasy burger ban. Schorr, a corporate attorney turned consultant with degrees from NYU and Oxford University, had planned to take his 4-year-old son to their usual restaurant, the Corner Café on Third Avenue, for his weekly Tuesday night visitation last week. 

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