TN Mom Does Not Get Access to Dad’s Psychological Records

Tennessee law case summary on access to psychological records in divorce and custody law from the Court of Appeals.

Hannah Ann Culbertson v. Randall Eric Culbertson  – Tennessee divorce mental health records confidentiality

Hannah and Randall Culbertson were married in 2004 and had two children.  In 2010, they separated and the mother filed for divorce in Shelby County, Tennessee.  She alleged that the father had committed physical and emotional abuse against her and the children.  Early in the proceedings, the court granted her an order of protection, ordering the father to stay away from her and the children.

The father denied these allegations, and asked for sole custody and decision-making authority for the children.

In late 2010, they were able to agree to some matters, and the court entered an order setting a temporary parenting schedule and temporary support.  That agreed order stated that the father would continue counseling with Dr. David Deason until he began therapy with Dr. Russell Crouse.  At some point, the father was also seen by Dr. Wyatt Nichols.  The order also stated that the mother would commence therapy with Dr. Lisa Clark.  It further stated that the children would be evaluated by Dr. Jane Clement.  The order stated that Dr. Clement would have permission to “speak with” the parents’ counselors and that the parties would cooperate.  Dr. Clement was also to make parenting recommendations to the court.

In February 2011, the mother went to court demanding to see the father’s psychological records.  She issued subpoenas to the three psychologists to produce “all notes and records” about the father’s sessions.  Not wanting the mother to have carte blanche access to his records, the father went to court to have these subpoenas quashed.  He argued that the records were not discoverable because they were protected by the psychologist-client privilege.

Meanwhile, Dr. Clement filed her report with parenting recommendations.  She stated that she spoke to two of the father’s psychologists, and received a letter from the third.  Dr. Clement recommended that the father be granted unsupervised and uninterrupted visitation.

The mother brought another motion once again demanding access to the records.  She argued that under the consent order, the father “had an understanding” that any information would be communicated to Dr. Clement, and was therefore no longer privileged.

About the same time, the father moved for unsupervised visitation with his children.  In support, he offered the affidavit of former Shelby County Juvenile Magistrate Judge Claudia Haltom, who had supervised the parenting time.  He was of the opinion that the father had very good parenting skills, he was bonded with the children, and that the children were reluctant to leave at the end of the visits.  The trial court, Judge James F. Russell, denied the motion on the grounds that the father had followed the wrong procedure.  The father renewed the petition based on the same grounds, and the matter was set for hearing.

Meanwhile, the court heard the hearing on the motion to quash the subpoenas.  Judge Russell held that the psychological records had to be produced, on the grounds that he had to take into account the father’s mental health, and couldn’t do so without full evidence.  The father then brought a first appeal to the Tennessee Court of Appeals, which vacated the order.

While this first appeal was pending, the case continued in the trial court.  The trial court cancelled the hearing to restore unsupervised visitation, reasoning that this could take place as part of the divorce trial.

A few weeks later, the father was found walking aimlessly in Memphis.  He had been drinking, and he called a neighbor to say goodbye.  Concerned bystanders called the police who picked him up, but he was not charged or arrested.  This prompted the mother to file a petition to keep the father from any parenting time until a psychological evaluation.  A hearing was held, at which the court heard the testimony of the parties and their pastor.

The pastor testified about a 2010 incident when the father said that he was going to hang himself in the living room so that the mother would come home and see him in all his glory.  He then threw a park bench.  He later apologized for this incident.  The mother testified about several violent outbursts and expressed concern that he would “snap.”

After this hearing, the trial court granted the mother another order for protection, and also ordered the father to undergo a psychological evaluation.  Under that order, the father retained Dr. John V. Ciocca.  Dr. Ciocca opined that the father was “currently stable,” had reasonable judgment, and didn’t represent any harm to the children.

After the appeals court had ruled the first time, the mother renewed her request for the psychological records.  The parties all showed up for the scheduled trial, and the trial court first ruled on this motion.  The trial court held that the privilege had now been clearly waived under the new circumstances, and the records were now discoverable.  The father then brought a second appeal to the Tennessee Court of Appeals.

The appeals court first had to determine whether the trial court had jurisdiction to enter this order, since the first appeal was still pending, because the mother had asked the Tennessee Supreme Court to review the case.  It concluded that some parts of the order were properly before the trial court, and therefore went on to look at the merits of the appeal.

The father’s first substantive argument was that the decision of the first appeal was the law of the case, and that the trial court had erred in straying from its provisions.  The appeals court agreed, and held that to the extent issues had been determined in the first appeal, those issues should not be revisited.

But the trial court had determined that the father had waived the privilege by introducing proof of his psychological treatment.

But the appeals court pointed to its first opinion, where it had stated that a claim of mental stability does not, by itself, constitute a waiver.  The court then looked carefully at the evidence after the first appeal to see if any of the father’s actions constituted a waiver.  But the court noted that merely disclosing the existence of a psychologist-client relationship does not operate as a waiver.  Upon examining the evidence, the appeals court found that there had been no waiver.  Also, his reliance upon various reports did not constitute a waiver of what he told the psychologists.

The court then looked at whether allowing Dr. Clement to talk to the psychologists constituted a waiver.  The court viewed this issue as “thorny,” but also concluded that there had not been a waiver of the privilege.  While there was a voluntary disclosure of some information, the appeals court held that it was not complete.

To avoid a third appeal, the Court of Appeals provided some guidance to the trial court.  It held that the mother would have access to any particular documents that had been voluntarily disclosed to Dr. Clement or Dr. Ciocca.  In addition, the trial court would be entitled to examine other documents in camera to determine whether the privilege had been waived for other documents.

For these reasons, the Court of Appeals vacated the order and remanded the case to proceed.

No. W2012-01909-COA-R10-CV (Tenn. Ct. App. Apr. 30, 2014).

See original opinion for exact language.  Legal citations omitted.

This case is referred to as Culbertson II because it is the second appeal in this case.  Here is the case summary of Culbertson I on this blog.

To learn more about custody, see Tennessee Child Custody Laws in Divorce.