Litigating a Custody Case Without Mental Health Records

Prior to this incident, the mother learned that the father had been hospitalized for mental health issues in 2010, and as a result, she filed a petition seeking to suspend custody. The parties entered into a consent order, directing supervised visitation with the father. In that order, the father agreed to execute a release that permitted the trial judge to review the records in camera. The release was specifically limited to records pertaining to the father's five-day hospitalization in 2010.

A year later, after the incident occurred with the maternal grandfather, the mother filed a petition seeking the father's mental health records for his latest hospitalization. The father objected and claimed that the records were privileged. The mother argued that the father had waived the privilege. The trial judge required the father to turn over his mental health records. The trial court found that the severity of the father's condition warranted disclosure.

The Appeal

The father appealed to the Pennsylvania Superior Court, which reversed. The superior court based its reasoning on the Mental Health Procedures Act of Pennsylvania (MHPA) and the seminal case of Gates v. Gates, 967 A.2d 1024 (Pa. Super. 2009). In Gates, a similar issue was presented, and the superior court applied the MHPA for the first time in a child custody case. Specifically, the court in Gates held that a party could not be compelled to disclose its mental health records under the MHPA for fear that there would be a chilling effect placed on individuals seeking mental health treatment. Absent an express waiver by the patient, there can be no such disclosure.

The superior court noted in both Gates and M.M. that the MHPA does not protect opinions, observations, and diagnoses of mental health professionals. However, communications between a patient and a mental health professional are, indeed, privileged.

In M.M., the trial court ordered release of all mental health records from the father's one-week stay in the mental health facility in 2011. Thus, the order was not limited to otherwise discoverable opinions, observations, and diagnoses. Accordingly, the superior court found that the trial court erred.

The court emphasized that the importance of confidentiality and the purpose of the MHPA would be severely crippled if a patient's records could be the subject of discovery in a panoply of possible legal proceedings. Thus, absent any exception carved out by the Pennsylvania Legislature to the MHPA, mental health records were not discoverable in a custody case.

The superior court also found that the trial court in M.M. could have used less intrusive alternatives to ascertain the effect of the father's bipolar personality disorder on the child's best interests. Specifically, the court could have ordered an updated court-appointed psychological evaluation of the father, which it is permitted to do under the Pennsylvania Rules of Civil Procedure. The mother argued that such an updated evaluation would be inadequate to assess or anticipate the ebb and flow of the father's mental stability or assist the court with managing the father's mental health. The court found that the mother's explanation for the disclosure of records was only to provide the same to her expert witness, which the court did not find compelling.

The mother also argued that the father waived the privilege by: 1) submitting to the court-ordered psychological evaluation in 2010; 2) consenting to the deposition of his treating psychiatrist; and 3) authorizing the release of information in 2010. The court found that none of these acts worked as a waiver of the privilege and, to do so, the father would have had to expressly waive the privilege.

The Implications

The message in M.M. is clear: Regardless of how serious a parent's mental health condition is, that parent cannot be forced to turn over mental health records.

It appears the superior court properly interpreted Pennsylvania's MHPA, but the obvious question remains unanswered: How can the judge properly make a determination about whether the father poses a threat to the child without viewing the mental health records or at least allowing the court-appointed psychologist to view the same? More troubling is the fact that the father in M.M. was able to disclose some records but not all. He probably was happy to turn over those records which showed he was making progress with his mental health treatment, and claim privilege for those records that did not.

It is not uncommon for an individual's mental health to ebb and flow over time. Per M.M., a litigant is able to release some but not all records. This could paint a false picture of mental stability and placate the concerns of the judge.

In M.M., the most recent psychological incident that occurred was the father biting the maternal grandfather's ear and being treated for a week at a psychological institution. Certainly, this would be the most crucial psychological episode in making a custody determination, if for no other reason than it was the closest incident in time to the custody trial. Yet, the father was able to block the mother and the judge from seeing these records.

What to Do

As family law attorneys seeking disclosure of mental health records, there are different ways to handle this complex issue. First, acknowledge to the judge that the party cannot be forced to disclose mental health records, but make the request that if the party does not sign a voluntary release for the same, the court would take an adverse inference against that party. In other words, the party either produces the records or the court would find that the party's mental health condition is dangerous to the child, and the parent would receive supervised visitation.

Another approach is treating it purely as an evidentiary matter by filing a motion in limine, requesting that, unless the records are turned over, no evidence may be presented at trial regarding the psychological condition by any expert or even by the litigant. The idea here is that unless a full disclosure is made on the issue, no facts may be adduced at the time of trial on the issue, as the same would be unfair to the other party. This prevents the parent with the mental health condition from picking and choosing which records to turn over, and which ones to keep and claim privilege.

Another solution may be to try to have the other attorney agree to allow the judge to review the records in camera, so that the party with the mental health condition still has the ability to maintain privacy. This was the solution that the attorneys in M.M. reached for the first set of records in 2010. While this is better than nothing, it does not prevent the parent from asserting privilege in the future for any subsequent hospitalizations.

There must be some balance in protecting a mental health patient's privacy and allowing a judge to see the full picture of the patient's mental health condition in a custody dispute. In Pennsylvania, at least, no such balance will be struck unless the Legislature modifies the MHPA. Until then, a parent can continue to keep his or her mental health records out of the judge's view, despite the severity of the mental health condition and potential danger the condition may pose to the child.

Andrew Taylor, a partner in Weber Gallagher Simpson Stapleton Fires & Newby LLP, Norristown, PA, regularly argues cases before the Pennsylvania Superior Court involving complex family law issues. E-mail: [email protected].

Almost every family law attorney has had a custody case where either his/her client or the opposing party has suffered from some kind of mental health condition. In those cases, the big question is when, if ever, a litigant's mental health records are discoverable. The Pennsylvania Superior Court recently addressed this issue and found that, absent an express waiver by the litigant, a party cannot be compelled to disclose the records. Instead, the trial court must find the least intrusive means to establish how a parent's mental health condition affects his or her ability to parent.

The Trial Court's Opinion

On Sept. 12, 2012, a three-judge panel of the Pennsylvania Superior Court issued a reported opinion in the case of M.M. v. L.M., 2012 PA Super 195 (2012). In M.M., the father was diagnosed with bipolar personality disorder in 1998. He had multiple hospitalizations due to his condition, and his mental health had been an issue throughout the custody litigation. In a particularly troubling incident, the father allegedly bit the maternal grandfather's ear in front of the child during a custody exchange. Following that incident, the father checked himself into a mental health facility, and remained there for a week. The central issue of the case was whether the mother could force the father to turn over his mental health records from this one week stay.

Prior to this incident, the mother learned that the father had been hospitalized for mental health issues in 2010, and as a result, she filed a petition seeking to suspend custody. The parties entered into a consent order, directing supervised visitation with the father. In that order, the father agreed to execute a release that permitted the trial judge to review the records in camera. The release was specifically limited to records pertaining to the father's five-day hospitalization in 2010.

A year later, after the incident occurred with the maternal grandfather, the mother filed a petition seeking the father's mental health records for his latest hospitalization. The father objected and claimed that the records were privileged. The mother argued that the father had waived the privilege. The trial judge required the father to turn over his mental health records. The trial court found that the severity of the father's condition warranted disclosure.

The Appeal

The father appealed to the Pennsylvania Superior Court, which reversed. The superior court based its reasoning on the Mental Health Procedures Act of Pennsylvania (MHPA) and the seminal case of Gates v. Gates , 967 A.2d 1024 (Pa. Super. 2009). In Gates, a similar issue was presented, and the superior court applied the MHPA for the first time in a child custody case. Specifically, the court in Gates held that a party could not be compelled to disclose its mental health records under the MHPA for fear that there would be a chilling effect placed on individuals seeking mental health treatment. Absent an express waiver by the patient, there can be no such disclosure.

The superior court noted in both Gates and M.M. that the MHPA does not protect opinions, observations, and diagnoses of mental health professionals. However, communications between a patient and a mental health professional are, indeed, privileged.

In M.M., the trial court ordered release of all mental health records from the father's one-week stay in the mental health facility in 2011. Thus, the order was not limited to otherwise discoverable opinions, observations, and diagnoses. Accordingly, the superior court found that the trial court erred.

The court emphasized that the importance of confidentiality and the purpose of the MHPA would be severely crippled if a patient's records could be the subject of discovery in a panoply of possible legal proceedings. Thus, absent any exception carved out by the Pennsylvania Legislature to the MHPA, mental health records were not discoverable in a custody case.

The superior court also found that the trial court in M.M. could have used less intrusive alternatives to ascertain the effect of the father's bipolar personality disorder on the child's best interests. Specifically, the court could have ordered an updated court-appointed psychological evaluation of the father, which it is permitted to do under the Pennsylvania Rules of Civil Procedure. The mother argued that such an updated evaluation would be inadequate to assess or anticipate the ebb and flow of the father's mental stability or assist the court with managing the father's mental health. The court found that the mother's explanation for the disclosure of records was only to provide the same to her expert witness, which the court did not find compelling.

The mother also argued that the father waived the privilege by: 1) submitting to the court-ordered psychological evaluation in 2010; 2) consenting to the deposition of his treating psychiatrist; and 3) authorizing the release of information in 2010. The court found that none of these acts worked as a waiver of the privilege and, to do so, the father would have had to expressly waive the privilege.

The Implications

The message in M.M. is clear: Regardless of how serious a parent's mental health condition is, that parent cannot be forced to turn over mental health records.

It appears the superior court properly interpreted Pennsylvania's MHPA, but the obvious question remains unanswered: How can the judge properly make a determination about whether the father poses a threat to the child without viewing the mental health records or at least allowing the court-appointed psychologist to view the same? More troubling is the fact that the father in M.M. was able to disclose some records but not all. He probably was happy to turn over those records which showed he was making progress with his mental health treatment, and claim privilege for those records that did not.

It is not uncommon for an individual's mental health to ebb and flow over time. Per M.M., a litigant is able to release some but not all records. This could paint a false picture of mental stability and placate the concerns of the judge.

In M.M., the most recent psychological incident that occurred was the father biting the maternal grandfather's ear and being treated for a week at a psychological institution. Certainly, this would be the most crucial psychological episode in making a custody determination, if for no other reason than it was the closest incident in time to the custody trial. Yet, the father was able to block the mother and the judge from seeing these records.

What to Do

As family law attorneys seeking disclosure of mental health records, there are different ways to handle this complex issue. First, acknowledge to the judge that the party cannot be forced to disclose mental health records, but make the request that if the party does not sign a voluntary release for the same, the court would take an adverse inference against that party. In other words, the party either produces the records or the court would find that the party's mental health condition is dangerous to the child, and the parent would receive supervised visitation.

Another approach is treating it purely as an evidentiary matter by filing a motion in limine, requesting that, unless the records are turned over, no evidence may be presented at trial regarding the psychological condition by any expert or even by the litigant. The idea here is that unless a full disclosure is made on the issue, no facts may be adduced at the time of trial on the issue, as the same would be unfair to the other party. This prevents the parent with the mental health condition from picking and choosing which records to turn over, and which ones to keep and claim privilege.

Another solution may be to try to have the other attorney agree to allow the judge to review the records in camera, so that the party with the mental health condition still has the ability to maintain privacy. This was the solution that the attorneys in M.M. reached for the first set of records in 2010. While this is better than nothing, it does not prevent the parent from asserting privilege in the future for any subsequent hospitalizations.

There must be some balance in protecting a mental health patient's privacy and allowing a judge to see the full picture of the patient's mental health condition in a custody dispute. In Pennsylvania, at least, no such balance will be struck unless the Legislature modifies the MHPA. Until then, a parent can continue to keep his or her mental health records out of the judge's view, despite the severity of the mental health condition and potential danger the condition may pose to the child.

Andrew Taylor, a partner in Weber Gallagher Simpson Stapleton Fires & Newby LLP, Norristown, PA, regularly argues cases before the Pennsylvania Superior Court involving complex family law issues. E-mail: [email protected].