The question of whether a parent must release his or her mental health records in a child custody proceeding, for review by the other parent, the court, or a court-appointed evaluator, is at least partially answered in JF v. CF, a Division 1 Court of Appeals Special Action opinion issued July 12, 2022.
Under the specific facts of this case, a parent’s mental health/ psychological records must be released (presumably to the other parent as well as to any court appointed professionals who are reviewing parenting time decisions) in a custody proceeding where the parent has made his compliance with alcohol treatment an issue in requesting unsupervised parenting time with the children.
The production of one year of records was deemed sufficient by this decision, based on reference to ARS §25-403.04 which references alcohol use “within twelve months before the petition” is filed. Presumably this means production of records starting one year prior to the divorce filing and continuing throughout the proceedings, as obviously dissolution and custody proceedings (and ongoing compliance with treatment) can continue for additional time after the case is filed.
This opinion notes the tension that has always existed between a parent’s psychologist-patient privilege (ARS §32-2085A) and the court’s duty to consider everything relevant to a child’s best interests in a custody case (ARS Title 25). This case resolves the tension squarely in favor of the court’s duty to consider the child’s best interests. Yet the opinion also suggests that the specific facts of this case could limit the application of this decision in future actions.
For one, it’s emphasized more than once that this Father acknowledged his alcohol issues.[1] One wonders if the same result occurs if a parent denies having a mental health condition and the requesting parent is fishing for mental health information that may or may not exist. [2]
As another distinction, this litigant requested affirmative relief from the court in the form of lifting restrictions placed on him regarding his parenting time. Had Father continued to exercise his unsupervised parenting time and also continued to comply with multiple testing procedures and attendance at therapy and AA meetings, the follow-through with production of his mental health records might not have arisen. It appears that the order to produce his records followed his petition to have some or all of the alcohol restrictions removed. As this case was at the temporary orders stage at the time removal of restrictions was requested, the litigant might have elected to wait out final orders, when restrictions like substance testing are often removed after several months of compliant testing.
There’s another factor in this case that makes me believe the waiver of the privilege and the production of mental health records might not be widespread to other fact situations. This Father’s mental health condition was “moderate to severe alcohol use disorder.” The nexus between alcohol overuse and poor parenting is fairly easy to establish. Arizona statutes specifically recognize that a substance use disorder is relevant to a child custody determination. ARS 25-403.04 Parenting concerns related to substance abuse include dangerous driving, passing out, neglect for child safety, inability to perform parenting functions and provide for children’s basic needs, and having minor children witness an impaired parent. Had the mental health disorder been of another type – depression, bipolarism, PTSD for example – and had the parent in question been medicated in order to remain functional despite the diagnosis, the nexus between the mental health condition and parenting might be more nebulous, and the parent’s psychologist-patient privilege might have been preserved. No Arizona statute specifically identifies any of those diagnoses as contrary to a child’s best interests, and only the general language of ARS 25-403(A)(5) references consideration of “[t]he mental and physical health of all individuals involved.”
It’s hard to gauge whether the failure to have the trial court transcripts available (from both the temporary orders hearing, and the oral argument where Father argued against providing his mental health records) influenced this decision. The opinion references the lack of transcripts several times[3], and the dissent chastises the majority for seemingly punishing Father for his failure to provide the transcripts. In one instance the COA seemed to want to know if, during the argument about the release of records, Father had “partially waived the psychologist- patient privilege on the discrete topic of alcohol abuse treatment” and the court then mentions (for a second time) that no transcripts of this argument were provided. It seems the COA wanted more information about what was actually said during the lower court arguments, and without transcripts to show otherwise, possibly found it easier to find a partial waiver or exception to the privilege.
There’s also the issue of how Father’s records are to be produced, and the opinion emphasizes several times that the production is for an in camera review, so that the trial court reviews the records to ensure “only the relevant and necessary documents are produced.” This method presumably ensures that if portions of the record have little to do with parenting concerns but might be embarrassing to the patient, those records will be protected. This reliance on the in camera review is emphasized by the opinion to be a “smaller intrusion” on privacy.
Some relevant quotes from the opinion itself will be helpful in future filings.
The dispositive factor in all child custody disputes is the child’s best interest, and Arizona courts must safeguard that interest.
Parents do not forfeit their psychologist-patient privilege by requesting parenting time in a custody action. A more detailed review of the tension between custody laws and the privilege must be undertaken, so no simple blanket statement of waiver is appropriate. In this case, the substance use disorder which is specifically mentioned in Title 25 statutes as being contrary to the child’s best interests calls for the production of records about that disorder, limited to one year prior to the dissolution filing.
When a parent’s privacy interest squarely conflicts with a child’s best interest, the child wins.
[1] Father acknowledged he was diagnosed with ‘moderate to severe alcohol use disorder’. He agreed he should not drink alcohol. He admitted DUI charges (before the marriage) and affirmatively alleged he rebutted any adverse presumption about his alcohol use by alleging he was in remission, consistently tested sober, and participated in personal therapy and support groups related to alcohol use.
[2] The dissent recognizes this concern, opining that this decision could “control” even a case where a victim of sexual abuse seeks mental health treatment and thus opens up privileged communications for production. It’s difficult for this writer to imagine the JF opinion as applying so broadly.
[3] including reference to the “unknown chasm of evidence” as the result of having no transcripts.
