When parents are entering a child custody case, mental health records may be part of the discussion, and patient-client privilege may not always apply. The goal of child custody proceedings is to make a decision that serves the child’s best interests. A parent’s mental health may impact what those best interests are, because mental health problems can make it hard for a parent to provide a stable home for a child. Getting these records can be a challenge, and parents need to understand how the process works.
How to Obtain Mental Health Records in an Illinois Divorce
When an Illinois divorce leads to a child custody case, mental health records may be needed to help the courts get the full picture of the child’s home environment options. According to the Mental Health and Developmental Disabilities Confidentiality Act, mental health records are not released except for under extraordinary circumstances. Also, the attorney must get the client and the therapist’s permission to have those records released. The Act protects the therapist-patient relationship, so the therapist is not obligated to provide the records.
What Happens when the Therapist Refuses to Release Records?
Because of the Mental Health and Developmental Disabilities Confidentiality Act, the therapist or the patient can refuse to release mental health records. In child custody cases, the family court must consider the child’s best interests, particularly when choosing the child’s primary guardian. Mental health is relevant to this decision.
Thus, the right to privacy is weighed against the needs of the child. This means the attorney for the other parent can seek a subpoena to get the records. If the courts agree that the records are critical to their decision, they can issue that subpoena and overturn the patient-client confidentiality protection. That said, this is not easy to do and there needs to be solid evidence that the records are needed.
Mental Health Considered Critical in Determining Child Custody
The bottom line is that choosing the right custodial parent requires the courts to know all of the details, including the mental health of each parent. If there is a serious mental health concern, that information is necessary to make the right decision and protect the child. Because of this, an individual’s mental health records may be made public during a divorce and child custody case.
