Can my therapy sessions, counseling, or antidepressants be used against me in my custody case?


Can my counseling or my medications be used against me in my custody case?

Can my therapy be used against me in my custody case?

Can my counseling sessions be used against me in my custody case?

Can my antidepressants or other medications and prescriptions (such as Zoloft, Prozac, Lexipro, Celexa or Xanax) be used against me in my custody case?

With few exceptions, information about a parent’s therapy sessions, mental health counseling, and antidepressant medication is confidential.  HIPAA law also prohibits release of personal information in custody proceedings without the patient’s consent. This is the general rule: Information regarding healthcare and psychiatric treatment cannot be disclosed to the other parent in a child custody case without the patient’s consent or waiver of the privilege.  A custody judge may order confidential records be reviewed, but the overall situation must be serious enough to order disclosure of confidential mental health and medical records over the objection of a parent.

Confidential Communications About Therapy, Counseling and Treatment

As with the physician-patient privilege, confidential communications between therapist-and-client or psychologist-and-patient are protected from disclosure in child custody proceedings. Spousal communications made during joint sessions with a marriage counselor can fall within Tennessee’s marital counseling privilege as well, meaning judges may rule all discussions are confidential and nondiscoverable. But there are important exceptions where treatment, therapy, and counseling sessions, along with prescription history, may be disclosed.

As already noted, a patient may voluntarily waive the privilege and permit disclosure of confidential information. The patient may also put his or her mental, emotional, or medical condition before the court on a particular issue. When calculating child support obligations, for example, the parent who is unable to work full time for mental health reasons puts that condition at issue in the case. As does the parent requesting additional funds to cover childcare costs during regularly scheduled therapy sessions. In both examples, the parent has injected the medical or mental health condition into the legal issue of child support, which a judge might rule acts as a waiver of the privilege on that matter. Another exception to the privilege arises with allegations of child abuse or neglect.  If the child’s mental health is an issue in the case, then the parents’ records could be required to be disclosed, too.

Whether confidential mental health documentation can be disclosed over your objection is a question for the judge.

Releasing Records During Forensic Child Custody Evaluations + Medication History

With custody proceedings, the forensic child custody evaluator appointed to the case – a psychologist or psychiatrist specifically trained in forensic evaluation – will request both parents sign a release permitting access to medical and mental health records.  Often, the release would include prescriptions for antidepressants and other mental health related medications.  The signed release waives the psychiatrist-patient or similar privilege. This allows the custody evaluator to obtain records directly from each parent’s healthcare provider, counselor, and mental health provider, along with the patient’s history of antidepressants and other medications. The evaluator reports back to the court on what is believed to be a desirable custody arrangement in the child’s best interests.

In most states, courts may consider balancing the interests of the child (and seriousness of allegations) against the privacy rights of the parent.  In any event, discuss your specific situation with your experienced family law attorney.

To learn more, see Child Custody Laws in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.

About 

Memphis divorce attorney and family lawyer, Miles Mason, Sr. JD, CPA founded the Miles Mason Family Law Group, PLC. The firm practices divorce and family law only representing clients living in Memphis, Germantown, Collierville, Bartlett, Eads, Shelby Co., Fayette Co. Tipton Co., and the surrounding west Tennessee area. For more information, see our Meet the Team page.

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