PATIENT-PSYCOTHERAPIST PRIVILEGE IN CHILD CUSTODY CASES

The Palm Beach County Bar Association recently published an article by Nugent Zborowski & Bruce partner Christopher R. Bruce on how the Fourth District Court of Appeal addressed the patient-psychotherapist privilege in child custody cases.

The case of Carrillo-Jimenez v. Carillo, 110 So. 3d 490 (Fla. 4th DCA 2013) is instructive as to the role a mental health therapist plays in disclosing (or not disclosing) confidential information obtained through therapy of a child-clients and also reaffirms the role (or lack of role) that the guardian ad litem program plays in this process.

In Carillo, Palm Beach County Judge Rosemarie Scher denied a father’s request to strike a social investigation report on account of the report including confidential communications between the children and their psychotherapist.  Part of the father’s motion to strike was based upon the court not appointing a guardian ad litem for purposes of determining whether the child’s patient-psychotherapist privilege should be waived or asserted.  The father petitioned the Fourth DCA for a writ of certiorari following the denial of his motion to strike, claiming that the trial court’s future consideration of the social investigation report’s contents would disadvantage him in the dissolution proceedings.

In Carillo, the Fourth DCA denied the father’s petition.  Relying on Hughes v. Schatzberg, 872 So. 2d 996 (Fla. 4th DCA 2004), the court held that a parent involved in contested custody litigation lacks standing to assert the patient-psychotherapist privilege on behalf of their child “where the parent is involved in litigation seeking to pursue their own interests, and the child is not a party to the underlying action”.  Given the relative brevity of the Carillo opinion, it is worth important to note that Hughes states it is not an abuse of discretion for a divorce court judge to refuse appointing a guardian ad litem to assert or waive a child’s patient-psychotherapist privilege.  The rationale for this is section 90.503(3)(d) allows a psychotherapist to assert the privilege on behalf of the child when the therapist believes it is in the child’s best interest to do so.

 

Bottom Line

Practitioners need to advise their clients that they have no legal ability to prevent their children’s therapist from testifying about their child in contested custody litigation.  Perhaps more importantly, therapists need to know that they are not prohibited from testifying just because a child’s parent (who is likely paying for the therapy) “says no”.  Absent a valid assertion of the privilege, the Fourth DCA allows therapists to assert or waive the privilege on behalf of their child clients.

The Fourth DCA’s opinion in Carillo is available here.  Click Christopher R. Bruce’s article on the patient-psychotherapist privilege in child custody cases to see Mr. Bruce’s recent article from the Palm Beach County Bar Bulletin.

For more information about your child custody case or the application of the patient-psychotherapist privilege in child custody cases, call (561) 844-1200 to arrange a consultation with one of the West Palm Beach Divorce Lawyers with Nugent Zborowski & Bruce.