But the therapist says ...

Maintaining confidentiality for children’s therapy in Florida custody disputes

We must first emphasize that the question whether a child’s therapy records or testimony of a child’s psychotherapist can be kept confidential in a custody dispute is a very complex area of Florida law. Each case is unique as far as the child’s best interest, each parent’s motivations and the nature of the subjects discussed in the psychotherapy.

The concern especially arises when the parties have not been able to settle matters of custody outside the courtroom such as through negotiation or mediation and a judge must make custody decisions. A parent may wonder whether a child’s therapy records or therapist testimony be protected from public disclosure in a trial. It is easy to imagine several important reasons that it might be in a child’s best interest to do so.

To protect a child’s best interests and understand the options for moving forward when this issue arises in a custody matter, the parent should seek out an experienced, knowledgeable lawyer to analyze the situation and provide advice about what steps can be taken and the associated pros and cons.

Privilege

It is helpful to look at the Florida statute about psychotherapist-patient privilege. Communications between a patient and psychotherapist, including resulting records, are confidential, with narrow exceptions, including communications produced in a mental health exam ordered by a court, or information about child abuse.

In other words, asserting this privilege can prevent children’s therapy records from becoming public in a court proceeding or stop the therapist from testifying. The flip side is that waiving the privilege can open the door to the information communicated in therapy being admissible in the custody dispute.

Privilege belongs to the patient. Florida cases recognize that an older child may hold a “mature minor” privilege to control his or her own private therapy information. In Florida a few other people can claim the patient’s privilege:

  • Patient’s lawyer on behalf of the patient
  • Patient’s guardian or conservator
  • Personal representative of a deceased patient
  • Psychotherapist on behalf of the patient

According to an article in the Florida Bar Journal, a court might “pierce” the privilege to allow admission of therapy records if it is directly relevant to the child’s welfare or safety, or to a parent’s “ability to care for the child.” Even so, the court may be willing to exercise other protections for the minor’s privacy like having the judge review the records in private (called in camera review), releasing only the bare minimum of records needed or issuing a protective order that those exposed to the information must keep it confidential or risk court sanction.

A case example

Hughes v. Schatzberg involved a custody dispute so the key issue was the child’s best interest. The court said that parents do not have the power to waive or to assert their child’s patient-psychotherapist privilege on behalf of the child given that a custody dispute involves each parent directly to answer the question of what is best for the child’s welfare. Instead, a guardian ad litem appointed to represent the child’s interests could assert or waive the privilege as could the psychotherapist on behalf of the child.

This blog introduces a much larger topic of Florida law. An attorney can answer specific questions.

 

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  • The Law Office of Daniel E. Forrest represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.
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