Therapist Client Privilege with a Child Patient

One thing that is often argued over in family law cases - both initial divorces, and post-judgment matters - is whether both parents should be able to review mental health and psychological records of a child. A situation sometimes occurs when one parent in a custody battle makes allegations against the other parent, using a therapist's opinion or statement as a basis for the allegations.

The other parent may not have even known that this therapist existed in the child's life. When this happens, it is natural for the parent who is not "in the know" to immediately demand access to these records, to want to meet with the therapist, etc.. But what about the patient-psychotherapist privilege? Can a parent break through this privilege and access this information? It depends.

Case law has made it clear that when parents of a child are involved in litigation over what is in the best interests of a child, the parents, neither unilaterally nor jointly, may assert or waive the child's patient-psychotherapist privilege. The important part of this is that a parent cannot assert the privilege on behalf of the child, thereby blocking the other parent from having access to the information. So if a parent cannot make this decision, who can? Again, it depends.

Typically this privilege is held by the patient. If a child is seventeen years old, and just shy of being an adult, capable of asserting the privilege on his or her own, it is likely that a court would allow a child to exercise this right even as a minor. The right to decide whether or not to release this otherwise confidential information would be held by the child patient. However, a child of young age will not be mature enough to make a decision regarding this privilege, and that is when this issue can become more complicated.

Some states, although not Florida, have made a hard and fast rule that says either a Guardian ad Litem or an Attorney as Litem must be appointed by the court to represent the child's interests regarding the confidentiality of this type of information. Since Florida has not made a definitive requiring the appointment of either a Guardian ad Litem or and Attorney ad Litem, the court can make the decision of whether or not the privilege should be waived on its own.

Like most things in family law, there is one other catch. The psychotherapist, if he or she thinks it is necessary to protect the patient's interests, can asset the privilege and insist that the information remain confidential. If you find your self in a situation where your child is being treated by a therapist, and you are being denied access to this information, it is possible that you should, and could, have access to this information if the issue is brought to court.