Tenn. Mom’s Mental Health Records May Not Be Disclosed in Custody Case
Tennessee law case summary on confidentiality of mental health records in Tennessee divorce and custody law from the Tennessee Court of Appeals. Note: Second case summary of this case in this blog.
Ashley Herman v Daniel Herman – Tennessee Custody and Medical Record Privacy Laws
Ashley Herman, the mother, and Daniel Herman, the father, divorced in 2009. They had one child and the parenting plan named the mother as the primary residential parent. The mother, however, suffered mental health problems and was hospitalized for extended periods, during which time the child stayed with the father.
In June 2011, the father filed a petition to modify custody and child support based on the mother’s hospital stays. He stated that the mother had a history of mental illness and was previously diagnosed, during the marriage, with multiple personality disorder. His petition explained that the mother’s condition worsened over the years, that she was not compliant with her medication or treatment and that she was hospitalized for a period of approximately five months, from October 2010 to February 2011. The father did not state what behavior or symptoms were witnessed. He did argue that it was not in the best interests of the child to live with the mother and that the deterioration in her mental health, and his corresponding increase in child care, comprised a “substantial and material change of circumstances.”
The father asked for permission to see the mother’s medical records and the mother objected. The trial court ordered the medical records to be filed, under seal, to the courts. The mother appealed this decision.
Tennessee mother’s records protected
The appeals court accepted the mother’s appeal and reversed the lower court’s decision. According to Tennessee law, these medical records are confidential. The appeals court did not accept any of the father’s arguments. The father’s first claim was that Tenn. Code Ann. § 33-3-105 was not applicable. This code, according to the appeals court, refers to mentally ill and retarded individuals who are under the state’s care, and the mother did not fall into either category.
The father’s second claim was that the mother’s medical information was needed in order for the court to make a decision about the best interests of the child. Tennessee custody law allows the courts to consider the mental health of a parent as one of the factors in a custody determination. The court needed to view the mother’s medical records, according to the father, in order to make a fair and accurate determination. The court held that while this is taken into consideration, it’s not “a license to disregard statutory privileges from disclosure.”
Finally, the father argued that he chose to ask for the mother’s medical records rather than request an order for a mental health examination. He believed such an examination would be more intrusive, would not determine all of the mother’s mental health issues, and that the mother would not be cooperative in such an exam. Asking for disclosure of the records, according to the father, would be quicker, less burdensome on both parents and less expensive. The court held that the mother still had the right to refuse disclosure of her medical records. The appeals court also pointed out that the father may still choose to petition for a mental health examination of the mother, if he can establish that her mental health is in controversy and that there is “good cause” for such an examination.
See original opinion for exact language. Legal citations omitted.
Memphis divorce attorney, Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. Buy The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle. To schedule your confidential consultation, call us today at (901) 683-1850.
