If you are concerned about a party’s mental health history impacting how he or she interacts with your child, you may wonder whether a custody court can consider mental health records. This is a rather complex area of the law so this article will only summarize some basic points for consideration.

Generally speaking, confidential communications contained in a party’s mental health records are private and cannot be released for a court to consider in a child custody case. This is because Pennsylvania recognizes confidential communications between a patient and physician are privileged. Therefore, these records are generally protected from release unless the patient authorizes dissemination or waives the privilege. It is important to point out that a physician’s opinions, observations and diagnoses can be revealed in some situations. Also, the custody court does have the statutory power over a party to undergo a psychological evaluation. A party’s mental health records may be obtained as part of the evaluation and considered.

There is no discovery permitted in a child custody case without permission of the court. This means that a party cannot subpoena records or require the other side to produce information. Sometimes parties will voluntarily exchange information or agree to some limited discovery without a court order but this does not happen in most cases.

Individuals should be mindful that not all communications made in the course of counseling are confidential. For example, if parties attend marriage counseling and statements are made that concern a therapist regarding the safety of the child, the therapist may be required by law to report information disclosed in counseling. Also, inpatient treatment records are generally afforded more protection than outpatient records.

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