My Spouse Has Psychological Concerns, Which I Believe are Relevant to a Determination of Child Custody. Can I Obtain Their Psychological Records and Submit it to the Family Court as Evidence?

There are various privileges as to evidence which can be admitted to a court. One of them being the psychotherapist-patient. This prevents communications in a therapist’s office, including the therapist file, from being revealed to anyone other than the client or those who work within the therapist’s office.

Technically speaking as per the Evidence Code, the psychotherapist-patient privilege covers, “confidential communications between patient and psychotherapist.”   Specifically, it includes information obtained by an examination of the patient, that:

  1. Is transmitted in confidence between a patient and the patient’s psychotherapist in the course of that relationship;
  2. Is transmitted by means that, as far as the patient is aware, disclose the information to no third persons other than those who are present to further the patient’s interest in the consultation, or those to whom disclosure is reasonably necessary for transmission of the information or accomplishment of the purpose for which the psychotherapist is consulted; and
  3. Includes a diagnosis made and advice given by the psychotherapist in the course of that relationship.  Evid C §1012.

The purpose behind the rule is that a level of trust must exist between a physician and the patient so that the physician can properly treat the patient. If the patient were fearful of telling the truth because he or she believed the physician would report such behavior or if this information was discoverable by anyone other than the physician, the treatment process could not move forward, and/or the physician could make an incorrect diagnosis based on a lack of complete information.

Thus, you would not be able to obtain treating psychologist’s file on the other parent. However, this privilege can be lost by the patient through waiver. Should there be a waiver of the privilege, be sure to provide evidence of this to your attorney.

The right of any person to claim the psychotherapist-patient privilege is waived with respect to a communication protected by that privilege if:

  1. Any holder of that privilege, without coercion, has disclosed a significant part of the communication; or
  2. Any holder of that privilege, without coercion, has consented to disclosure by another person.  Evid C §912(a)).

Consent is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including the failure by the privilege holder to claim the privilege in any action in which he or she has the legal standing and opportunity to claim that privilege. Evid C §912(a).  People v Haskett (1990) 52 C3d 210.  Additionally, a privilege is waived when a holder of a privilege fails to claim the privilege by objecting to the release of psychiatric records under a subpoena duces tecum.  Inabnit v. Berkson (1988) 199 Cal.App.3d 1230, 1238. 

Often times, a party waives this privilege by signing an authorization to allow a Family Court Services child custody mediator to speak with their therapist. You should always obtain the advice of an attorney before signing this authorization.

Even though there may not be a waiver of the privilege such that you can obtain records, you may still be able to address these psychological issues to the court though your own declaration, or declaration of others who have been a witness to certain concerning events. Be sure to discuss these concerns with an experience attorney.

If you are experiencing this issue, please feel free to contact our offices for a consultation based on the particular facts of your case. All materials have been prepared for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys.  The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.

Comments are closed.

Law Offices of Tess Reutzel