Custody, Visitation and Disclosure of Parent’s Psychological Records

In this action for divorce and ancillary relief, the defendant-husband (hereinafter “husband”) moves for an Order permitting him to depose the treating therapist of the plaintiff-wife (hereinafter “wife”), Dr. E.C., and authorizing the issuance of a Subpoena Duces Tecum to be served upon Dr. C. instructing her to disclose all of her notes to counsel for the husband regarding her treatment of the wife. The wife opposes the motion claiming that it has no basis in law or in fact. She also cross-moves for various relief which is addressed in this Court’s decision on Motion Sequence 003.
It is the husband’s position that given the wife’s allegations, which he contends are false, that he abused the parties’ son and repeatedly raped her, he has “no choice as a loving, responsible father but to ask that the Court order [the wife’s] psychiatrist of 15 years, Dr. C., to turn over the notes and records of L’s extensive psychiatric treatment and that my attorneys be [*2]allowed to take Dr. C.’s deposition regarding her treatment of [the wife] prior to any trial in this case.” According to the husband, he does not seek to hurt the wife, but, rather, wants to help his son. He states that he could not in good faith agree to any final custody arrangement, nor should the Court make a custody determination, without more information regarding the wife’s psychological condition, which, he contends, has allowed her to level these vicious accusations at him. Moreover, Dr. C., the husband states, is the person with the most information about the wife’s medications and how her condition “can be kept in check and how it could potentially worsen over the next 16 crucial and formative years of [the child’s] life.”
According to the husband, when he first married the wife he was unaware that she had a condition that required extensive psychological treatment. In fact, he claims that the wife would see Dr. C. 18 times per month and even spoke with the therapist regularly during the parties’ honeymoon. However, it was not until the parties went through the in vitro fertilization process that the husband says that he learned that the wife had been prescribed different types of medication throughout the years and was currently taking 5 milligrams of Valium twice a day. In addition, it is the husband’s belief that the wife has paranoid tendencies evidenced by her telling her attorney who then relayed it to the Court that she was being followed by a van and that a man was taking photographs of her in the park.
In opposing the husband’s motion, the wife points out that the husband has failed to provide any authority which supports his request. While she acknowledges that the parties have put their respective mental conditions at issue by contesting custody, she argues that this does not mean that either party is entitled to pretrial discovery regarding the other’s mental health history. Rather, she states that pretrial review of the parties’ mental conditions and parenting ability is precisely the reason why a neutral forensic evaluator is appointed for custody disputes as one has been appointed in this action.
The wife also contends that it was the husband who repeatedly lost touch with reality, “erupting into screaming tirades that our housekeeper was trying to poison him; he often repeatedly screamed that someone was trying to kill him in the shower through poisonous gas being fed through the water lines; he fired our baby nurse in the middle of the night. . ., claiming she was trying to hurt our son’s penis; he became hysterical when our son flushed the toilet without shutting the lid because poisonous vapors escaped through the toilet; he wrote notes about time travel; he insisted that someone was defecating on our towels even though they were clean; [and] he told our son in front of me that he was capable of killing me just as the character in a movie they were watching had killed his wife. . . .” Additionally, she annexes to her papers affidavits from two individuals who witnessed some of the acts of which she accuses the husband and which describe other allegedly idiosyncratic behavior on the husband’s part. She further alleges that during the marriage the husband sexually, verbally and emotionally abused her, causing her love for him to turn to fear. Notably, she does not controvert the husband’s allegations in connection with Dr. C.
It is well established that pretrial disclosure of privileged medical records is limited, especially in a custody litigation given the sensitive nature of the issues involved and the potential for the abuse of such discovery. See, e.g., Ferguson v. Ferguson, 2 Misc 3d 277 (Supreme Court, Nassau County 2003); Garvin v. Garvin, 162 AD2d 497 (2nd Dept. 1990); Coderre v. Coderre, 1990 WL 312774. As the Coderre, supra , court noted, since the wholesale pretrial discovery of the medical records of one party does not provide any mechanism to ensure that only relevant and [*3]material confidential information is disclosed, these records may contain communications that are “embarrassing, humiliating, potentially damaging and totally irrelevant to the issue of present and future parental fitness.”
However, privileged information may be disclosed “where it is demonstrated that the invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody. . . .” State ex rel. Hickox v. Hickox, 64 AD2d 412 (1st Dept. 1978) citing, Perry v. Fiumano, 61 AD2d 512 (4th Dept. 1978).Accordingly, this department has adopted a policy which requires that a party’s medical records be reviewed by the Court and that only portions of the records deemed to be relevant and material, if any, be disclosed. Hickox, supra . This policy was recently reaffirmed in the case of Penny B. v. Gary S., 61 AD3d 589 (1st Dept. 2009), wherein the court held on the father’s petition for an award of custody, that the court had acted properly when it conducted an in camera review of the notes of the husband’s therapist and determined that it was unnecessary to release them or for the therapist to testify since the court had sufficient information about the father from other sources.
Based on the foregoing, the Court finds that under the circumstances here an in camera review of Dr. C.’s notes and records concerning the wife is appropriate. Accordingly, Dr. E.C. is directed to produce to the Court all of her notes and records regarding the treatment of the wife for in camera inspection. Such production shall be made no later than January 8, 2010. Upon review, the Court shall disclose any portion of the material which it deems to be material and necessary for the purpose of determining custody of the parties’ child. The husband’s application to depose Dr. C and his request that the Court authorize the issuance of a Subpoena Duces Tecum to be served on her instructing that she disclose all of her notes to counsel for the husband regarding her treatment of the wife is denied.

One issue that often comes in divorce actions, as well as in custody actions, involves disclosure of a party’s psychological or counseling records.  The party seeking the records typically is aware of some damaging information that may contained in them and would like to force their disclosure to the court or the attorney for the children.  The party whose records are being sought typically opposes such demands on the grounds that such records are private and extremely sensitive.  Psychological records may contain information with respect to a party’s psychological condition or mental illness, or other information, that may have impact on the parent’s fitness for custody or visitation.

In a recent case, L.W. v. E.S., 2009 NY Slip Op 52718(U) (Sup. Ct. New York Co.), the court had to address issues dealing with the husband’s motion seeking to depose the treating therapist of the wife , and authorizing the issuance of a Subpoena Duces Tecum to be served upon the therapist, instructing her to disclose all of her notes toattorney for the husband regarding her treatment of the wife.  The wife opposed the motion.  The court engaged in a discussion of the parties’ positions and applicable legal principles.  The court stated that it is well established that pretrial disclosure of privileged medical records is limited, especially in a custody litigation given the sensitive nature of the issues involved and the potential for the abuse of such discovery.

Since the wholesale pretrial discovery of the medical records of one party does not provide any mechanism to ensure that only relevant and material confidential information is disclosed, these records may contain communications that are embarrassing, humiliating, potentially damaging and totally irrelevant to the issue of present and future parental fitness.  However, privileged information may be disclosed where it is demonstrated that the invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody.  Accordingly, in view of these concerns, the court has adopted a policy which requires that a party’s medical records be reviewed by the court and that only portions of the records deemed to be relevant and material, if any, be disclosed.  Instead of providing unlimited access to the records, the court would usually conduct an in camera review of the notes of the therapist and determine if it is necessary to release them or for the therapist to testify.

The husband alleged that he was not aware of the wife’s psychological issues when he married her and that her psychological condition caused her to accuse the husband of various forms of misconduct.  The husband also alleged that the wife’s condition impacted her ability to parent.  After reviewing each party’s allegations, the court found that under the circumstances here an in camera review of the therapist’s notes and records concerning the wife was appropriate.  Upon review, the court shall disclose any portion of the material which it deems to be material and necessary for the purpose of determining custody of the parties’ child.

The courts approach requests for disclosure of psychological or mental health records carefully since there are significant reasons to limit disclosure of such records.  If the party’s divorce or custody lawyer can demonstrate that such records contain information that likely to be relevant to the parties’ custody or visitation dispute, such records will be disclosed.

Order of Protection, Divorce and Surveillance

As a divorce attorney, I am periodically asked if hiring a private investigator to follow a spouse is acceptable and whether, if found out, it would result in any negative repercussions. I usually respond that surveillance is acceptable; however, there may be some evidentiary issues with the results that may make them inadmissible during the trial. A recent decision shed some light on these issues.

In Anonymous v. Anonymous, 2010 N.Y. Slip. Op. 20024 (Sup. Ct. Orange Co. 2010), the husband has brought a motion for summary judgment seeking to dismiss the wife’s petition which alleged the husband violated an order of protection pursuant to a settlement stipulation in Family Court.  The order of protection, entered without any finding of fault against the husband, directed him to refrain from committing a family offense or criminal offense against the wife and to stay at least 1000 feet away from the residence and place of employment of the wife except for court-ordered child visitation or to attend church services on Sundays.  The wife’s violation petition alleged that the husband retained a private investigator who recorded on DVD the wife entering a motel and having an affair with a priest assigned to the Church, where the wife was employed.  The wife alleged that the husband furnished the DVD to her superiors at the Church resulting in the wife being forced to resign.  The wife contended that there was no legitimate purpose in the husband having her followed by a private detective and delivering the DVD to Church officials and that doing so was intended by the husband to cause her to lose her employment and cause her personal humiliation and suffering.  The wife claimed that such conduct constitutes a violation of the order of protection.

In opposition to the husband’s motion to dismiss the petition, the wife’s attorney alleges the husband hired the private detective after he filed his answer and counterclaims in the divorce action.  The wife’s attorney contended the husband was not legally bound to turn over the DVD to Church officials.  The wife’s attorney argued that the husband violated the order of protection by acting through an agent, the private detective he hired, to follow and record the wife’s activities, and then turning over the DVD to the church causing the wife to lose her employment.

The court held that it was not improper for the husband to retain the services of a private investigator since the hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.  The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.  Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

With respect to the question of whether delivering the DVD to the Church officials, which was not necessary for the husband to defend or prosecute the divorce action, raised a triable issue of fact that the husband in having the wife followed and recorded by a private investigator intended to inflict emotional and financial harm upon the wife which might constitute a violation of the order of protection.  Although harassment in the second degree often involves conduct which places a person in fear of their physical safety, the language of the statute does not limit itself to only physical threats. If the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment such might qualify as conduct which alarms or seriously annoys another person, and serves no legitimate purpose, constituting harassment in the second degree.

The husband in his motion papers has prima facie demonstrated his entitlement to summary judgment dismissing the petition by evidence showing he did not retain the private investigator for an improper or illegitimate purpose such as harassment or stalking under the Penal Law or intend to make improper use of the private investigator’s work product DVD.  Upon the failure of the wife to demonstrate the existence of a triable issue of fact that the husband committed a crime or family offense against her or otherwise violated the order of protection, the court granted the motion for summary judgment dismissing the petition.

So, the lesson of this case can be summarized as follows.  One, surveillance in divorce cases is a legitimate means of gathering evidence.  Two, surveillance alone will not amount to a violation of an order of protection.  Three, if results of surveillance are delivered to a third party, with possible negative consequences to the party under surveillance, such act may violate an order of protection, if there was no legitimate reason for such disclosure.  If you are seeking to involve a private investigator to follow and observe your spouse or significant other, I would urge you to consult with a divorce attorney before doing so.