December 5, 2016

IS YOUR EX CRAZY? Even if that is the case, you cannot access his or her mental health records in a custody proceeding.  The fear that a parent with mental health issues will digress to serious misjudgment and violent behavior creating an undeniable risk for the child, is so real and overwhelming for the other parent that it seems reasonable to expect the parent with the mental health diagnosis to release his or her records for review in the custody action.  He is not so required to do so.  Mental health records can only be accessed if the other parent signs a medical waiver or release.

Pennsylvania’s Judicial Code, 42 Pa.C.S.§5944, makes a parent’s communications with a psychiatrist/psychologist confidential, but does not extend to the doctor’s opinions, observations and diagnoses.  The Mental Health Procedures Act (MHPA), 50 P.S. §7111(a), makes all inpatient mental health records confidential.  Gates v. Gates, 967 A.2d 1024 (Pa.Super. 2009), is the seminal case addressing the disclosure of confidential mental health information during custody proceedings.  This case holds that the expectation of confidentiality in mental health records is critical to effective treatment, because inevitable disclosure in custody proceeding will certainly chill a patient/parent from seeking treatment.  The severity of one’s mental health or history of violent behavior does not affect this rule of law, nor does the “best interest of the child” standard outweigh the parent’s right to keep one’s mental health records private.  It has been argued that a parent who alleges to be adhering to a treatment protocol, and asserts a custody claim, puts mental health at issue and, therefore, waives a right to privacy with regards to mental health records.  This, too, is rejected by the Courts.

Alternatively, Pennsylvania trial courts can require one or both parents to submit to a psychological evaluation pursuant to Pa.R.C.P. 1915.8, as a less intrusive means to determine a parent’s suitability for custody.  However, the parent with the mental health condition may refuse to release his or her records.  The records relied upon by the custody evaluator in rendering an opinion are not made available to counsel, which does hamper counsel’s ability to challenge the conclusions made by the evaluator.  Furthermore, the evaluation is only a snapshot in time that does not reflect a parent’s mental health on the days, weeks, or months that follow the evaluation, when the symptomology of mental health may have a dramatic ebb and flow.  The other parent’s remedy is to seek various protections like supervised or public visitation, limited custody time, or restricting overnights.  Parents must also formulate a fact specific parenting plan to submit to the Court, that provides layers of reasonable protections for the children at issue.  Let the Family Law lawyers at Strassburger McKenna Gutnick & Gefsky help you if you are experiencing such a custody scenario.