Accessibility to a parent's psychotherapy records in custody disputes: how can the competing interests be balanced?

One of the issues that commonly arises in custody disputes is whether one parent or the court may obtain access to the records of the other parent's mental health treatment. The answer to this question varies across jurisdictions given that states do not treat the medical/psychological therapeutic privilege uniformly. These differences demonstrate the competing interests whenever a party's mental health records become an issue in a custody proceeding, and the attempt to balance the interests when the therapeutic privilege is asserted. This article will examine the balancing challenge, review the scope and function of the psychotherapist-patient privilege, discuss different states' approaches to the balancing challenge, and propose that preserving the privilege creates the most effective, long-term balance. The article concludes with strategies on addressing privilege issues in custody cases.