Are medical records confidential in child custody cases?

Utah law considers communication between a doctor and patient confidential. See Utah Rules of Evidence 506. This privilege also encompasses communication between mental health therapists and their patients. That means that except in certain circumstances discussed in this article, a patient can object and prevent any other person from disclosing and using medical/therapy records against him or her in court.

However this privilege is not absolute. Evidence Rule 506(d) lists certain exceptions to this privilege. The most common exception (d)(1) is when a patient has a “physical, mental, or emotional” condition that is relevant to the “claim or defense” being raised in court. For example, if you were injured in a car accident and wanted to sue the other driver for injuring you then medical records showing the extent of the injuries you suffered would be relevant in court as they would help the judge determine how much (if anything) it would cost to heal your injuries. Or in the context of a child custody case if a parent went crazy, started chasing his or her child around the house with a butcher knife, and was subsequently committed to the hospital for mental illness then that parent’s medical records could be subpoenaed and used in a custody case.

Another common exception (d)(3) is for communications made in the course of a court-ordered therapy or examination of a patient. For example, a child custody evaluation. In this context there is no confidentiality for anything the examiner learns in the course of his or her investigation may be reported to the court and used in determining what arrangements will serve a child’s best interest. Likewise, if a parent is ordered to undergo therapy as part of a custody case then that therapist’s records may be used in subsequent litigation. In re L.L., 2019 UT App 134 at ¶ 24-26.

Does this mean that just by contesting custody either parent can go on a fishing expedition in the other’s otherwise confidential medical and mental health records? Not necessarily. To justify discovery the Court must generally make a threshold determination the other parent suffers from a “condition” that is relevant to his or her parenting abilities. For example, a documented history of alcohol or drug abuse, mental health issues, suicidal threats, or the like. If a parent asks to go rummaging through the other’s records just “because” the Court may deny the request and keep those records confidential.

With respect to a child’s therapist, courts may sometimes designate that therapist as a “safe harbor” therapist meaning the therapist is not allowed to testify and his or her records cannot be used in court. The intent of such provisions is to ensure children have somewhere safe they can openly talk about their feelings and therapists can do their job properly without everyone worrying about what that therapist might say in court (as the therapist cannot get involved in the court process).

Even if the Court does allow discovery of a parent’s medical or mental health records that does not mean they lose all confidentiality protections. Courts will commonly enter what they refer to as a “protective order” barring parents from using these records outside the context of litigation. For example, if a parent wants to hire an expert to look over the other parent’s records and provide an opinion to the court that is likely permissible. But if a parent wants to publish the other parent’s mental health records on Instagram or Facebook simply to embarrass him or her the Court would likely be outraged and impose sanctions.

Are you going through a child custody case where you are wanting to investigate the other side’s medical or mental health records (or maybe they are wanting to look at yours)? If so give the Utah Family Law Attorneys at Wiser and Wiser a call at 855-254-2600.