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Mental Health and Florida Child Custody: When is Mental Health Status Relevant?

Child custody cases can often get heated. When they do, many parents don’t hold back in trying to show why the other parent should not be awarded custody of the children. If one parent has a history of mental illness or has visited a therapist, the other parent may try to use that as proof of parental unfitness. But how much weight does such evidence carry in a child custody determination, and can it be used in court?

Florida Psychotherapist-Patient Privilege

Under Florida law, communications between a psychotherapist and her patient are generally confidential. Known as the psychotherapist-patient privilege, it applies not only to patients who seek treatment for mental or emotional conditions such as depression or being bipolar, but treatment for alcoholism and drug addiction as well. The privilege prevents the psychotherapist from disclosing the information obtained in treatment, including all notes of sessions, to anyone not involved in the patient’s care.

The Florida court has ruled that the act of seeking custody is not enough to waive the privilege and require that the records be turned over to the other parent. The fact that the father regularly sees a therapist, by itself, is insufficient to order the therapist to turn over treatment notes. Instead, the parent requesting admission of the therapist notes must show the occurrence of “calamitous events”. If, for example, the father seeks therapy for depression that leaves him incapacitated for lengths of time, or makes him suicidal – both of which could negatively impact his ability to properly care for the children, or possibly put them at risk for physical harm – then the court may order they be turned over. But even then, the court has ruled that the calamitous event must occur during the custody proceeding; so the fact that the father was suicidal in the past may still be insufficient to have the notes turned over.

In these circumstances, where mental fitness is a concern but no calamitous event justifies ordering the records turned over, the judge can order either or both parents to undergo an independent psychological evaluation to help guide its decision. The court may order a mental health evaluation regardless of whether the parent already receives treatment from a therapist. The psychotherapist-patient privilege does not apply in these circumstances, as the evaluation is being conducted solely for trial.

Whether the psychotherapist notes are turned over due to a calamitous event, or the court orders an independent evaluation, evidence of a mental health condition or alcohol/drug problem does not automatically mean a parent is unfit for custody. It is simply one of many factors the court must consider in determining what time-sharing agreement is in the best interests of the child, and the judge will evaluate it in terms of its potential impact on the children’s physical and mental well-being.

Experienced Boca Raton Child Custody Attorneys

The Boca Raton child custody attorneys at Schwartz l White have more than 50 years’ combined experience helping client’s draft reasonable time-sharing and parenting plans. Together we will sit down and discuss what arrangement is in your child’s best interests. Our goal is to work toward a mutually agreeable plan with the child’s other parent and, if that is impossible, to aggressively advocate for your position in court. Contact our office today at 561.391.9943 to schedule your free initial consultation.

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