Discovery of Personal Medical Records in Florida Timesharing Cases

When you and your spouse go through the custody and timesharing litigation process, there can be many steps along the path. Unfortunately, some cases will be contentious. In those cases, there may be many things over which you have to litigate, including which parts of your personal information your spouse is or is not entitled to obtain in the discovery process. In a recent Pensacola case, the issue was the mother’s medical and psychiatric records, which the father sought, covering a period of seven years.

The couple in this case filed for divorce in 2012, when their child was four. Three years later, the father initiated an involuntary commitment against the mother, alleging that she was abusing drugs, was exhibiting suicidal tendencies, and had driven while intoxicated with the child in the vehicle. Between the time of the divorce and the commitment proceeding, the couple had shared 50-50 timesharing

The mother’s timesharing was completely suspended for a time after the commitment but was eventually reinstated. The proper amount of time was a matter of continued dispute, however. At that point in the process, the father asked the trial judge to order the mother to turn over her medical and psychological treatment records going back three years. Instead, the trial judge ordered the mother to turn over “all her records regarding treatment, diagnosis, care and medications from all her psychologists, psychiatrists, counselors, and medical doctors who have treated her for any mental health issues or prescribed pain medication or any mental health medications to her in the last seven (7) years.”

The mother appealed and achieved a partial success. In cases like this, there are several things that the courts have to address. One of these is the psychotherapist-patient privilege. Someone in the position of this mother has such a privilege, but courts can set aside that privilege in some situations. To set aside the privilege, though, the court must have hard proof. The other side’s presentation of “mere allegations of mental or emotional instability” isn’t enough to overcome the privilege, according to the court.

Even if the facts and evidence of a case indicate that wiping away the privilege is proper, the law imposes yet another restriction, this one related to timing. In a timesharing case, in which a parent’s parenting ability is the issue, the law limits the court’s analysis to that parent’s “present ability and condition.” Just because a parent has had substance abuse problems in the past won’t, by itself, be enough to overcome the privilege. There must be proof that the sought-after information will relate to the parent’s present problems.

Another situation in which the privilege won’t protect the information from discovery is if the patient has engaged in conduct that amounts to an involuntary waiver of the privilege. Florida law allows involuntary waivers of the privilege in extreme circumstances. In the past, courts have ruled that extreme circumstances exist in custody and timesharing cases when a “calamitous event” took place, such as a mother’s threatening to kill herself and her children, or when a parent voluntarily committed herself to an institution for mental health treatment.

Your timesharing case may end up involving even more issues than you originally expected. In dealing with your timesharing case, you need experienced counsel who can zealously represent you throughout every phase of the process. The diligent South Florida child custody attorneys at Sandy T. Fox, P.A. have many years’ experience helping parents with their timesharing and other family law cases. To find out how we can help you, contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

What Happens in Florida When an Emergency Changes Circumstances Surrounding Your Custody Arrangement, Fort Lauderdale Divorce Lawyer Blog, July 20, 2016

What it Takes to Seek a Timesharing Modification in Florida, Fort Lauderdale Divorce Lawyer Blog, May 27, 2016