“Can Psychiatric Records Be Used In Custody and Visitation Hearings?”

Mental health can often be a real issue in custody and visitation cases, with one side accusing the other of having mental problems which affect their ability to parent. The conditions can range from simple things like depression, up through bi-polar disorder and more serious psychological conditions. Since this often devolves into “he said, she said” fights, oftentimes a subpoena will be issued for medical or psychiatric records to show that someone is on medication, has been prescribed medication and is not taking it, or has self-reported mental problems in the past. Can those records be obtained?

The answer is usually no, if a proper objection is made, with some limited exceptions. Mental health records are considered private and are covered by the physician-patient privilege stated in California evidence Code Section 994. Subpoenas can be objected to, as well as requests for productions of medical records made directly to the party who has the alleged condition.

This privilege can be asserted even when the other side alleges that the information is needed to determine the proper custodial parent or if visitations are appropriate. (See the case of Simek v. Superior Court (1981) 117 Cal.App.3d 169, where a party was denied disclosure of the other party’s mental health records even to try to show instability.)

This privilege applies even when a party has been hospitalized for mental health issues, and the records of such a hospitalization are privileged. (Koshman v. Superior Court (1980) 111 Cal.App.3d 294.)

So what are the exceptions?

The records are not privileged if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to him/herself or others and the disclosure is necessary to prevent harm. (Evidence Code section 1024 and Tarasoff v. Regents of Univ. Of. Calif., (1976) 17 Cal.3d 425.)

Another exception is if there has been a waiver by putting the mental health at issue by the party who holds the privilege. However, be aware: a party who denies mental health allegations does NOT waive the privilege by putting their mental health at issue with a simple denial of the allegations. (Manela v. Superior Court (2009) 177 Cal.App.4th 1139).

The other way the exception can apply is in a court-ordered mental evaluation under Family Code section 730, or court-ordered drug testing under 3041.5, which is based on facts presented to the court about the party’s behavior, and in court-ordered custody evaluations.

Many times, if the court will not order disclosure of the records, then parties will need to present direct testimony of observed behavior to show mental instability or problems. Nothing in the privilege prevents one party from testifying directly about behavior and problems they themselves have witnessed.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.
NOTICE: This blog and all materials on our website constitute advertisement materials, and the promulgation of such materials is meant for the residents of the State of California only. The attorneys and this firm do not practice law in any other state. In addition, the promulgation of these articles does not in any way create an attorney-client relationship and any inquiries and information you may send to the attorneys should be general and not specific, as they are not confidential.