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Can a Spouse Obtain Medical and Mental Health Records in Divorce and/or Child Custody Matters?


The involvement of mental health professionals in Florida divorces is relatively common. Often times, they just receive a request, or even a subpoena, for records. However, if you’re concerned that your soon-to-be ex-spouse can just request all your medical and/or mental health records to use against you in the divorce, it’s not that simple.

In general, there are relationships that are protected by privilege. This means the legislature has decided that these relationships are important and need to be protected. However, this is not absolute. There are some situations that warrant breaking privilege, and the rules surrounding those can be complex. And, there are some attorneys who may have ulterior motives when requesting confidential medical and / or mental health records and documents. Given that not all providers understand the complexities of legal privilege, they could release something when they shouldn’t, or not release something when they should. This is one of many reasons why having a skilled Boca Raton divorce attorney is so important. You need someone who will fight to protect your records and ensure privilege is not broken.

Determining Privilege

The courts strictly follow the law on privilege. They have a presumption of no privilege unless these four conditions apply:

  • Is the professional in question a psychotherapist?
  • Is the client a patient?
  • Is the requested information privileged?
  • Does the person asserting the privilege have the right to do so?

Situations Where Privilege Might Not Apply

Under the psychotherapist-privilege provisions, there are some instances where privilege may not apply, These situations often relate to the physical and mental well-being both parents, and you don’t immediately waive privilege just by filing for custody. Florida courts use a balancing test to determine whether privilege should pierce the corporate veil. Piercing privilege requires what’s described as a “calamitous” event, which is one that has a direct relationship on the person’s parental fitness, and evidence cannot be obtained through any other methods. If one parent is struggling with depression and attempts to commit suicide during the custody case, this is a situation where privilege would be waived as the mental health of this parent is at issue.

Essentially, there are four main exceptions to privilege in Florida:

  • Baker Act Proceedings
  • Communications involving an alleged or known perpetrator of suspected or known child abuse
  • When a patient has relied on their condition as part of their defense or claim
  • Subsequent to any court-ordered evaluations

Some attorneys might claim that privilege is waived when another person is in the room. This is not an automatic waiver, especially when it’s marriage or family counseling. An attorney will allege that prior drug use or mental issues do not automatically pierce privilege either. Unfounded allegations regarding prior child abuse may be denied as well. If your attorney sends you to a psychotherapist as part of trial preparation, it falls under work product and attorney-client privilege.

Retaining a Florida Family Law Attorney

If you have further questions regarding privilege as it relates to divorce and/or child custody matters, contact the team at the Law Offices of Schwartz | White. Our skilled attorneys can assist with this and all other Florida family law-related matters. Contact us on our website or call our office at 561-391-9943 to schedule a consultation.

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