Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, April 27, 2009

Case Law Development: Access to Parental Mental Health Records in Custody Actions

In the continuing battle over the role of psychological experts in custody actions, courts have been called upon to examine the balance between the broad scope of discovery in these actions and the right of privacy in mental health records. In a case in which a Father sought Mother's mental health records in order to support his claim for modification of custody, the Pennsylvania Superior Court held that, even though a court has statutory authority to order a parent to submit to a mental health evaluation does not mean that it may require the parent to disclose existing privileged mental health records. While the court did not find these records to be covered by physician/patient privilege because the records were not confined to communications for the purposes of treatment, the court did find that the broader privacy provisions of the state Mental Health Procedures Act did cover the records.  Moreover, the court concluded that “less intrusive means exist for the trial court to make a determination as to Mother's suitability as a custodial parent, rather than releasing Mother's privileged mental-health records … and vitiating her statutory right of confidentiality.”

Gates v. Gates, 2009 Pa Super 40 (March 10, 2009) (last visited April 27, 2009 bgf)

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