IN A CONTESTED CUSTODY CASE, ARE YOUR THERAPEUTIC RECORDS SAFE?

Getting counseling is a good thing. A qualified and experienced therapist can help people through their most troubled times, and even save lives. What is shared in a private meeting with a therapist is considered to be confidential, and the records of that therapist are protected. But are those confidential therapeutic records truly safe? — If you become involved in a child custody dispute in the Arizona Family Courts, the short answer is that they might not be.

The issue at the heart of the debate goes to the legal theory known as “Privilege,” and specifically, “Therapist-Patient Privilege.” – What is Privilege? It is the principle that certain relationships are so sensitive and important that what is discussed should be considered confidential and not “discoverable” or admissible in a court proceeding. Some examples of confidential relationships that rise to the level of being considered “privileged” are Attorney-Client,” “Doctor-Patient,” and “Therapist-Patient.”

But enter the 2022 Arizona appellate court case of JF v. Como, 253 Ariz. 400 (App. 2022): This is now the leading Arizona case on Therapist-Patient Privilege. In it the Court of Appeals Division One explores both sides of the conundrum in detail – And here’s the conundrum: On the one hand, therapeutic records are considered privileged and protected – but, on the other hand, in Family Court a judge has an overriding duty to protect the “best interests” of children. These two legal principles can sometimes be in direct conflict, and clash. So that raises an interesting question: When parents are embroiled in court battle over legal decision-making authority and parenting time of a child, and obtaining therapeutic records of one or both parents may help the Court determine what kind of plan would be in the child’s best interest, does the Court have the authority to order that those very personal and confidential records be disclosed? And if it does, then what becomes of the therapist-patient privilege?

In the case of JF v. Como, Mother accused Father of being “an alcoholic” who “disappear[ed] for days at a time while on drinking binges,” and she expressed ”serious concern” about ‘the children being in a vehicle with Father due to his history of driving while intoxicated.’” She also alleged that Father had once tried to pick up their daughter from school while intoxicated. On his part, Father admitted that he had been diagnosed with “moderate to severe alcohol use disorder,” and in addition he admitted to four DUI charges prior to the marriage. He agreed that he should not drink alcoholic beverages, but stated that he was in “early remission” and had tested sober for “nearly four months.” He argued that he should not be required to disclose the records from his therapist, since those records are privileged under state and federal law. On the other hand, Mother argued that the Court has an overriding duty to protect the “best interests of the children,” and because Father was asking the court to grant him unsupervised parenting time he “waived” his right to assert the therapist-patient privilege and, therefore, the Court had the right to require him to produce his therapeutic records.

So what do you think the Court decided? Did it require Father to produce records? — If your answer was “Yes,” you’d be right. The judge in this case ordered that the therapeutic records must be disclosed.

Here’s what the Court in JF v. Como stated with regard to the applicable Arizona statute and the reasons for its decision:

“As relevant here, (Arizona Revised Statutes) Section 25-403 requires that courts determine questions of legal decision-making and parenting time ‘in accordance with the best interests of the child,’ accounting for ‘all factors that are relevant to the child’s physical and emotional well-being.’ A.R.S. § 25-403(A).  One factor is ‘[t]he mental and physical health of all individuals involved.’ A.R.S. § 25-403(A)(5). The legislature also recognized an adverse presumption against parents who have abused drugs or alcohol ‘within twelve months before the petition.’ See A.R.S. § 25-403.04(A). In those cases, Arizona law creates a ‘rebuttable presumption that sole or joint legal decision-making . . . is not in the child’s best interests.’ Id.”

Thus, according to Arizona law there is a legal presumption that a parent who has abused drugs or alcohol within 12 months before a petition is filed should not be awarded sole or joint legal decision-making authority. The parent with the drug or alcohol issue can possibly overcome that presumption, but only by presenting “clear and convincing evidence” that he is capable doing so and that it would be in the best interest of the child.

In a disputed custody case in Arizona, if there is evidence that a party is an unfit parent, or is abusive, or has severe mental health problems, or substance abuse issues, then evidence of those matters is not just relevant to the issue of child custody, but it is critically important. It assists the Court in determining the kind of parenting plan that will be in the “best interests of the child.” For a judge to miss serious signs of trouble could result in a child being harmed, or even killed. Therefore, under Arizona law as it exists today, a party who chooses to fight for legal decision-making or parenting time in a court action is considered to have “waived” (or given up) the right to assert the therapist-patient privilege – and, therefore, that parent’s therapeutic records must be provided, upon request by the opposing party.

In the JF v. Como case, the Court ordered Father to produce his therapeutic records dating back a year, and the order provided that the judge would review the records “in camera” (meaning privately in the judge’s office) to determine what portion of those records were relevant to the custody case, and admissible in court.

HOWEVER, THAT’S NOT THE END OF THE STORY:

There is another side to the to the question of whether the courts should be able to invade a person’s privacy with regard to their therapeutic records. Some legal experts believe that the fact that a person is involved in a contested custody case should not be deemed a waiver of their Therapist-Patient Privilege, and that the person should not be required to disclose the records of things they said in confidence to their therapist in a private session.

In the JF v. Como case, that view was very succinctly summed up in a strongly written and very persuasive Dissent by Judge Peter Swann. In it he makes a compelling argument that carving out a waiver to the therapist-patient privilege creates a situation in which “the exception to the privilege swallows the rule,” and completely eviscerates the privilege. There is no doubt that the chilling effect of a waiver will deter some people from getting the help they need – the kind of help that can also keep the children safe. And that’s a bad thing.

A convincing argument can be made that there are already options and processes in Family Court that render a waiver of the therapist-patient privilege to be unnecessary. –  For instance, a party to a contested custody litigation in Arizona has the right to ask the Court to order an evaluation of the other parent (or even the entire family) by a licensed professional. If one parent is concerned that the other has serious a mental health, substance abuse, or an anger/violence problem that affects their ability to properly parent the children, that parent can file a motion requesting that the Court appoint an expert to conduct an evaluation. There are a number of different types of evaluations, each one consisting of a different degree of investigation. The judge can appoint a Court Advisor, or order a Focused Assessment, or a Comprehensive Family Assessment. I will not describe these in detail here, but each of them involves the use of a licensed psychologist or other mental health professional who will interview one or both of the parties, and possibly the children, and (upon request) others who have knowledge of the parties and/or the family situation – and the evaluation may include home visits. The expert may also review medical, criminal, school, or other records provided by the parties. A Comprehensive Family Assessment is the highest-level (and most expensive) evaluation and usually includes psychometric testing. As an alternative, a party can ask the Court to order that the other party undergo a Psychological Evaluation by a psychologist or psychiatrist (these generally include testing but not interviews of parties and children, or a review of other evidence). In each of these evaluations, when the work is completed, the expert will write a report containing her/his findings, and some may include recommendations. The expert will then submit the report to the judge, with a copy to the parties or their attorneys.

The expert is considered to be an objective and unbiased reporter, since she/he was appointed by the Court; and judges often give their reports a great deal of weight in making a final ruling on legal decision-making authority and parenting time.

If alcohol or substance abuse is an issue, a party can ask for a court order requiring Random Drug/Alcohol testing.

In addition, because a private therapist is a “mandatory reporter,” if a patient in a therapy session admits to abusing a child, or makes a threat to commit a crime or to harm someone, the therapist is required to report it to the authorities.

Given the fact that all of these options and safeguards exist in Family Court – which can provide a judge with the all the information they need to be able to determine the best interests of the children – then, arguably, it should not be necessary to obtain a parent’s private therapeutic records.

In our own experience representing clients in custody disputes we have seen cases where a party was in therapy because she or he was dealing with issues of rape or molestation, or was a crime victim, and in some cases the abuse occurred years before the children were even born. Clients in that position may ask: “Why must I be forced to provide my ex (who is now my adversary) with all the personal and hurtful things I’ve talked to my therapist about in confidence?” – It’s a legitimate question. The information may have little to do with the issues involved in the custody dispute, and the fear of having to provide therapy records could cause a person to stop receiving the counseling they need, which is so critically important to their wellbeing.

If the law requires people to disclose their private therapeutic records against their will, why would anyone want to obtain counseling?  And if they do obtain counseling, the fear that their most personal secrets could become public might cause them to be less than candid with their therapist. The chilling effect of this law could turn out to have terribly negative consequences, since it may cause people to choose not to seek help that would improve their lives and make them healthier, happier humans and better parents.

However, the fact remains that under the law as it exists in Arizona today, a judge has the authority to order parties to a contested custody case to disclose their personal and private therapeutic records.

The information contained in this blog post is provided for informational purposes only, and is not intended to be, nor should it be construed as, legal advice. Reading this information does not constitute an attorney-client relationship. For advice regarding your individual situation, you should consult with an attorney. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established in writing. To schedule a personal consultation, you can contact us at 602-922-9989 or reach us by email at info@famlawaz.com.