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Litigating a Custody Case Without Mental Health Records
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.
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