California Mother Not Allowed to Use Privileged Information from Father’s Therapy in Custody and Visitation Case

counselingIn cases involving issues of child custody and visitation, parents may seek to introduce a wide array of relevant evidence to persuade the court of the correctness of their arguments. One thing a parent cannot do, however, is disclose information from her ex-spouse’s therapy that is protected by the psychotherapist-patient privilege when the patient did not waive the privilege. In one Northern California case, a mother sought to do exactly that but lost because, regardless of relevance or the children’s best interests, the information was covered by the privilege and had not been waived.

In this case, the mother was the spouse who filed for divorce after roughly a decade of marriage. As the divorce litigation progressed, the parents encountered issues with visitation. The father filed a request for an order on visitation, arguing the mother had been limiting access to the children. The trial judge issued a visitation order granting the father unsupervised visitation on specified dates and times. The mother then asked the court to make the visits supervised, arguing that the father had “serious mental health issues.” The father denied this assertion.

In her next step, the mother asked the court to cut off all visitation until the father submitted to a mental health examination. As part of litigating her case, the mother disclosed several pieces of information that had been communicated to her by the father’s psychotherapist while he was in therapy. The father objected to this disclosure and argued that the information was protected by the psychotherapist-patient privilege.

The mother appealed, arguing that she should be allowed to disclose what she had learned about the father’s diagnosis and treatment. She argued that the father waived the privilege when he allowed the providers to share information with her. The appeals court ruled against her. California law says that, if a disclosure is made because it “is reasonably necessary for the accomplishment of the purpose for which the . . . psychotherapist . . . was consulted,” it does not trigger a waiver. In this case, the disclosures were made to the mother in order to further the father’s treatment in therapy, so no third-party waiver took place.

The appeals court also rejected arguments by the mother that she should be allowed to disclose because the information she possessed was “relevant and material,” and her disclosures were necessary to protect the best interests of the children. The relevance argument missed the point, according to the court. A legal privilege, like the psychotherapist-patient privilege, “is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding.” The best interests argument also was unpersuasive, since the law does not require judges to weigh a party’s privacy interest in non-waived privileged information against other factors like the children’s best interests. As California courts have long noted, there are “means other than by violating the privilege for the family court to obtain information on the father’s mental health and thereby evaluate the safety of the children,” including taking evidence directly pointing to the father’s instability or ordering an examination.

In your family law case, the difference between a successful and an unsuccessful outcome may be getting in all of your information, as well as keeping out information that shouldn’t be before the judge. The skilled San Diego child custody attorneys at Doppelt & Forney have been assisting clients throughout Southern California, including in San Diego, Encinitas, La Jolla, and Chula Vista, for many years in seeking beneficial results in custody and visitation cases. For a free consultation, reach out to Doppelt & Forney through our website or call toll-free at (800) ROY IS IT (769-4748).

More blog posts:

Drug/Alcohol Testing and California Custody and Visitation Decisions, San Diego Divorce Lawyer Blog, Aug. 16, 2016

California Court Decides Issue of First Impression in Child Custody Case, San Diego Divorce Lawyer Blog, Jan. 27, 2015