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As noted in an earlier blog, mental health issues are quite common today in custody cases (divorce and paternity). Many parties in these matters are quite convinced their partners suffer from one or more psychological or even psychiatric disabilities that should block the partner’s ability to parent the children. These alleged disabilities often include allegations of narcissism, borderline personality disorder, obsessive/compulsive disorder, or even bipolar illness. Decisions by judges are required to be based on the evidence presented during litigation. Thus, a key question is how to present proof that these mental or emotional conditions exist in the partner and, more important, how to show that these conditions affect the partner’s ability to parent. These can be critical issues in determining the best interest of the children in fashioning supervised or unsupervised timesharing schedules, and granting sole or shared parental responsibility for the children (i.e., sole or joint decision-making).

Introducing documents and live testimony regarding mental health issues into evidence during hearings and trials is governed by the Florida Evidence Code, the Florida constitution, federal HIPPA rules, specific statutes and the appellate court cases interpreting them. The basic rule is that a person’s mental health records are confidential and shielded from disclosure due to constitutional and statutory privacy protections. The same rules apply if a party wants to call the partner’s psychologist, psychologist or other mental health provider to testify as a witness in a court proceeding. Merely alleging in court pleadings that the other spouse or partner has or had mental health issues is insufficient to allow the court to see the mental health records or hear from the mental health provider.  Much more is required.

So how is evidence of mental health brought before the court? How is the confidentiality privilege overcome?

To begin, the pleadings filed in the case must state that the mental health evidence is relevant, that is, that the partner’s present ability and condition to parent the child is at issue. If the partner has filed pleadings in which the partner relies upon his/her mental health or emotional condition in support of a his/her claim or as part of a defense to your claim, then this can constitute a waiver of that confidentiality privilege. “The door has been opened” is one way to look at this. If the pleadings state in sufficient detail that the partner is currently unfit to parent due to the mental disability and why that is so, that may be sufficient. Examples would include a listing of “calamitous events” that occurred at the hands of the partner that affected the health, safety or welfare of the children. Such events might include suicide attempts, being involuntarily confined (‘Baker Acted’) while in charge of the children, significant drug abuse while with the children, domestic violence and the like.

Mere allegations alone of mental disorder are insufficient to overcome the strict privilege of confidentiality that surrounds the production of mental health records and evidence. Pleadings that substantiate a claim of a waiver of the privilege, or that state with great specificity that the mental health disabilities of the partner have endangered the children and show a current challenge to the best interest of the children would likely have greater success in convincing a court to allow the evidence. The goal at the least should be to have the mental health materials reviewed in chambers by the court with an eye toward later introducing that evidence at the court proceeding. The law seeks nothing less than balancing of the protection (‘best interest’) of the children against the privacy rights of both parents in family court cases.


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