Posted by Nydia Streets of Streets Law in Child Custody

When the mental health of a parent is at issue in a Florida child custody case, is a parent required to produce his or her records regarding past treatment for mental health issues? The psychotherapist-patient privilege protects a party from having to disclose records and communications with a psychotherapist, but that privilege can be waived under certain circumstances. This is explored in the case Zarzaur v. Zarzaur, 213 So.3d 1115 (Fla. 1st DCA 2017). 

Previously, the parties agreed to an equal time-sharing schedule for their children. About three years later, the former husband attempted to have the former wife involuntarily committed to a hospital, alleging she was abusing drugs and that she was suicidal. At the same time, he requested that the equal time-sharing be suspended. After the former wife was evaluated and a conclusion was reached by the examining physician that there was "no documented abuse", the former wife moved to reinstate her equal time-sharing. 

In considering the former wife's request, the court ordered the parties to submit to independent psychological evaluations (and this was agreed-to by the parties). After a hearing was held granting the former wife more time-sharing with ruling reserved on the permanent time-sharing arrangements, the former husband requested the former wife's mental health records, alleging she put her mental health at issue. The trial court granted the former husband's request for mental health records for the previous seven years without limiting the scope of those records. 

In reversing the trial court's order, the appellate court considered the psychotherapist-patient privilege and whether or not the former wife waived it in the proceedings. The appellate court concluded the trial court's order was erroneous because previous substance abuse allegations, without more was insufficient to overcome the privilege. The appellate court stated the former wife needed to focus on the former wife's present parenting ability.

Further, the court ruled that in order for there to be a determination as to whether or not the former wife had waived her privilege involuntarily due to a calamitous event (i.e. her alleged drug abuse), the trial court had to have an evidentiary hearing. Most importantly, the appellate court noted the trial court was required to perform an in-camera review of the former wife's medical records to ensure that relevant, timely and non-privileged documents would be produced. 

Medical records are private, sensitive documents that a party should not have to expose in litigation unless there is a substantial and valid reason for doing so. Protecting your private information starts with having an experienced Miami family lawyer on your side.