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Step-Parent Privacy in Divorce Proceedings

Part Two: My Husband’s Ex Wants My Medical Records! Can She Get Them?

Litigants who have experienced personal trauma related to the break-up of their family or other tragedies often seek mental health treatment, and they are not alone. As many as thirty-two percent of Americans have sought professional counseling for mental health concerns. It is important to insulate new relationships from the stress and potential drama of litigation, and we at Dadvocacy understand as much. Our Miami fathers’ rights attorneys have provided a helpful discussion of whether step-parent mental health records can be brought up in court, such as for child custody disputes.

Patient Privilege & Confidentiality

Generally speaking, any mental health patient, as well as any persons participating in their treatment, are entitled to psychotherapist-patient privilege pursuant to Florida Statute § 90.503 which states, in relevant part:

A patient has a privilege to refuse to disclose,and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition . . . between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship. (emphasis added)

This means that if your spouse or partner is being seen by a mental health professional, and you have attended sessions with them, you cannot be forced by a court or opposing counsel to divulge the contents of those sessions. However, this protection does not extend to aunts, uncles, and other members of your extended family. If you discuss what happened at session with “Aunt Betty,” for example, over the phone, she could potentially be called to testify because that information is no longer confidential.

A Little Precaution Goes a Long Way

If you or your partner are seeing a mental health professional, it is imperative to treat those sessions with the respect they deserve—whether or not you are in litigation. Be cautious about with whom you share treatment information.

Even if you feel that you are protected by psychotherapist-patient privilege, your ex may argue that your new spouse’s mental health is at issue in your litigation. Your ex must provide some statutory or common law basis for their ‘right’ to discover information about your spouse’s mental health. While a parent’s mental fitness is ‘relevant’ in determining timesharing issues, its relevance does not abrogate clearly defined statutory privileges. A party does not place his or her mental condition at issue merely by seeking child custody in a dissolution proceeding. [Freshwater v. Freshwater, 659 So. 2d 1206, 1207 (Fla. 3d DCA 1995)]

Factual Evidence & Records are a Must

Florida Courts have held that mere allegations that the custodial parent is mentally unstable are not sufficient to place the custodial parent's mental health at issue and overcome the [psychotherapist-patient] privilege.” [Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989)] “A parent's mental state is typically at issue in a custody hearing only when there are verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children. See In re G.D., 870 So.2d 235, 238 [(Fla. 2d DCA 2004)] (holding that in a dependency case, a parent's mental state is not “at issue” until the State's petition for termination of parental rights containing pertinent allegations of mental insufficiency is filed).” [Wade v. Wade, 124 So. 3d 369, 375 (Fla. 3d DCA. 2013)]

In addition to being cautious about who you share treatment information with, be sure that your conversations with your partner related to treatment are held in private to ensure that you have the additional protection of spousal privilege. Florida Statute § 90.504, states, in relevant part, that “[a] spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.” The Florida State courts accept the [spousal privilege] statute, as modified from time to time, as the sole source of the privilege. [Hill v. State, 846 So. 2d 1208, 1212 (Fla. 5th DCA 2003)]

The Supreme Court of the United States, in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1933), has opined: “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” (emphasis added)

The Florida Supreme Court has held that “[t]he privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved.” [Kerlin v. State, 352 So. 2d 45, 49–50 (Fla. 1977) (emphasis added)] Additionally, the Florida Supreme Court has held that it is “well settled that communications between husband and wife made in the course of their marriage relationship and while they are married and living together are privileged and may not be disclosed by one without the consent of the other party.” [Brown v. May, 76 So. 2d 652, 653 (Fla. 1954)(emphasis added)]

The Florida Supreme Court in Mercer v. State, the seminal case on spousal privilege, made clear the public policy that supports upholding privilege, even when inconvenient for the Court:

Such confidential communications between husband and wife have always been regarded as privileged, and, when attempted to be detailed or divulged by either of the parties to whom the communication has been intrusted, the law not only forbids, and will not permit it to be done, but regards it as a character of testimony that such witnesses are not competent to depose, and upon the same ground that it prohibits the violation by an attorney of the confidence reposed in him by his client,-that of public policy. Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the ban of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose as witnesses. Mercer v. State, 40 Fla. 216, 226, 24 So. 154, 157 (Fla. 1898)

Patient Confidentiality Supersedes Court Authority In Most Cases

Other than the very specific instances set forth in the statute when spousal privilege does not apply, or when it is determined that communications were not confidential, there is no authority for the Court to pierce spousal privilege in a dissolution or paternity case.

Even if the Court determines that the discovery sought by your ex is not privileged and is relevant to the determination of timesharing issues, the Court has the discretion to regulate discovery, and may determine, in light of the sensitivity of the issues raised, that “discovery of relevant, non-privileged information may be limited or prohibited in order to prevent annoyance, embarrassment, oppression or undue burden of expense.” [South Fla. Blood Serv. v. Rasmussen, 467 So.2d 798 (Fla. 3d DCA 1985) (cites omitted), aff'd, 500 So.2d 533 (Fla.1987); Fla.R.Civ.P. 1.280(c) Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3 DCA 1989)]

Information regarding your new spouse’s mental state, while it may be “relevant”, is generally not discoverable because of psychotherapist-patient privilege and spousal privilege.

Protect Your Rights & Privileges With Our Representation

If you are involved in divorce or custody litigation and mental health and fitness has been raised as an issue, contact an experienced Dadvocacy attorney to take steps to preserve the confidentiality of these sensitive issues. Our Miami fathers’ rights lawyers are fully committed to upholding your best interests you thick and thin. Give us a call at to begin your case