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How You May Be Able to Obtain Your Ex-Spouse’s Medical Records as Part of Your Child Custody Case in Florida

Here in Florida, the law strongly favors keeping the things discussed between you and your doctor or mental health provider private. There’s the doctor-patient privilege and the psychotherapist-patient privilege… and there are only a few situations where those privileges can be overcome. However, if you think that your ex-spouse’s addiction and/or mental health problems are potentially placing your children’s health and safety at risk and you need his/her medical records to prove it, now is not the time simply to assume there’s nothing you can do about it. Instead, reach out to an experienced South Florida family law attorney and find out what steps can be taken to protect your children.

A few months ago, this blog took a look at a parental responsibility dispute between a father and a mother from Polk County, the latter of whom was undergoing mental health care. In that case, the court ultimately ruled that the mother was not required to disclose her mental health records because she never did anything in that legal custody case to make her mental health an issue.

Now, we are going to look at the other side of that coin. Say you need to obtain your ex-spouse’s mental health and/or substance abuse records and get them before the judge. To do that, you need to prove that the privilege has been waived.

One way transpires when your ex-spouse, unlike the mother from that Polk County case, proactively does something that places his/her mental health/stability at issue in your case. What does that mean? Here’s an example from another recent custody case. In that case, the mother called her mental health counselor to testify at not one but two different hearings. The mother called the counselor to testify about confidential conversations the pair had and also to opine about the mother’s mental stability. When she did those things, she placed her mental health and stability at issue and “opened the door” for the father to obtain an array of records, including documents stemming from the mother’s five-day, in-patient hospitalization for psychiatric care.

Establishing that a ‘calamitous event’ creates a waiver

Another way that you may be able to persuade the judge of the existence of a waiver is as a result of a “calamitous event.” Some appeals courts in Florida have stated that an involuntary waiver occurs when a parent, during the pendency of a custody case, does something like attempting suicide or threatening murder-suicide. According to past rulings by the Fourth District Court of Appeal, this kind of calamitous event allows a trial judge to rule that “the mental health of the parent is sufficiently at issue to warrant finding no statutory privilege exists.”

In a Fifth District Court of Appeal case, a mother told a friend that she intended to kill her children and herself. The friend found the threat sufficiently credible that she immediately drove the mother to the hospital, where the mother was voluntarily committed. The court, in that case, ruled that this mother’s behavior constituted an “implicit waiver“ of the privilege, stating that a “trial court is not required to wait until a calamitous event becomes a tragedy” before it finds that a waiver of the privilege has occurred.

Whenever the health or safety of your children is potentially at risk, you always want to do everything possible to ensure their well-being. If that means initiating a child custody case and seeking to obtain your ex-spouse’s medical records, there may potentially be ways to do that. To find out exactly what you can do, reach out to the experienced South Florida family law attorneys at Sandy T. Fox, P.A. We know that your children mean the world to you, and we’re here to be the powerful advocate you need as you strive to ensure their safety. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation today.

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