Child’s Psychologist-Patient Privilege: Can a Parent Waive It In a Custody Case? Hawaii decision

by Annette Burns on August 19, 2016

In PO v. JS, the Hawaii Court of Appeals ruled that neither parent can waive or invoke a child’s patient-therapist privilege if the parents themselves are involved in litigation over the child.    The Father was attempting to assert the child’s privilege to prevent the therapist from testifying. The Mother called the therapist as a witness, claiming that the therapist’s input was “‘central to the paramount issue”, which was parenting time, which is an exception to the psychologist-patient privilege in Hawaii.   The Court of Appeals found that the trial court was in the best position to determine if a GAL should be appointed to assert the child’s privilege (assuming the court finds that the child is not mature enough to do so on his own).

Decisions from Florida, Kentucky, Maryland and New Hampshire were cited in support of the Hawaii court’s determination that Father could not assert the privilege for this child.     The Court of Appeals remanded this case to the trial court for appointment of a GAL, if that appointment would assist the court in making the determination on the privilege.

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