“Are Medical Records Admissible In Custody and Visitation Hearings?”

Although medical records relating to physical health are requested less often than mental health records, they do become in important in some custody and visitation cases, with one side accusing the other of having physical problems which affect their ability to parent. Medical records showing drug use or positive drugs tests, or even rehabilitation records, are often sought. Such records are privileged, and in general are not admissible, although testimony about the effects of a physical condition and limitations related to that condition will be admissible.

It is important to note that denying a physical limitation or medical condition does NOT waive the right to assert the privilege related to medical records. 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, which is based on facts presented to the court about the party’s behavior, and in court-ordered custody evaluations. Drug tests ordered by the court under Section 3041.5 are also not privileged. Section 3041.5 reads, in part:

“In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.  This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance.  The court shall order the least intrusive method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.  If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.”

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 physical 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.

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