Psychiatric confidentiality in child custody disputes

The various legal and ethical issues that may arise in the context of divorce proceedings when custody of a child is disputed are noted. A latent issue in such cases pertains to the treatment records of the parents, as well as the child, if any of the parties have ever been in any type of psychiatric treatment or mental health therapy. The principal parties may seek access to each others' records, and courts and attorneys may do so as well.

The issues that arise are explored by way of hypothetical clinical cases, as well as a consideration of leading appellate cases from different legal jurisdictions.

Access to psychiatric treatment records is often handled in diverse ways by clinicians in disputed custody proceedings. Their clinical experience offers little to guide them in this confusing area. To complicate matters, legal rulings may differ from one jurisdiction to another as well as within one jurisdiction. Positions taken vary along a continuum from the extremes of advocating that all past and current psychiatric treatment records be made available in such disputes, to no records being made available.

In the state of current confusion and risk for psychiatrists, as well as past and present patients, a proposal is made that only when issues of "parental fitness" are raised should consideration be given to the release of psychiatric treatment records, in contrast to the traditional rule of "best interests of the child," which would continue to operate in other areas of family disputes.