Category Archives: Child Visitation

Mentally Ill Until Proven Innocent? A Frequent Issue in Custody Cases

Joshua Katz - Mentally Ill Until Proven Innocent? A Frequent Issue in Custody Cases{3:00 minutes to read} Allegations of mental illness, noncompliance with psychiatric medication, psychological treatment or therapy are frequent concerns among feuding parents in custody cases. A clearly relevant issue, the court will often need more information about the parties and their mental status.

However, HIPAA laws and the concern over privacy makes obtaining mental health records and entering them into evidence very challenging.

Obtaining Medical Records

When mental health is made an issue in a custody case, a subpoena should be issued to the service provider(s).

Most often, the mentally ill spouse will not want confidential information entered into evidence and will refuse to sign consent or a HIPAA release form allowing the provider to share records.

As a result, a motion must be made to the court. The court will then determine whether the importance of the records to the best interests of the child(ren) outweighs the privacy concerns of the protected party. If so, the court will issue an order stating “pursuant to NY MHL §33.12(c)(1), the interests of justice significantly outweigh the need for the patient’s confidentiality.”  

When this order is issued by the court, the mental health provider is no longer violating privacy laws by releasing records to the courteven if their patient instructs them not to release the records.

Despite this, many providers are still reluctant to share records. Although HIPAA violations are no longer an issue, there remains a valid concern about the ongoing status of the clinician-patient relationship if records are divulged against the patient’s will. With this in mind, providers often do not release records.

This leaves the litigant, and the Court, with no evidence and no viable way of obtaining records to prove the mental health status of the other parent. Unfortunately, this is quite common. At this point, however, the judge can take a negative inference from the failure of the accused mentally ill parent to provide records.

In other words, the judge can assume the allegation of mental illness is true despite the lack of evidence.

Mental Illness & Custody Cases

Mental illness is really no different from other types of illness. With treatment and medication compliance, there is often little effect on parenting ability, judgment, or reasoning. A person with mental illness may be perfectly capable of handling their child and, with the proper care, asymptomatic.

Still, for many, there is a stigma attached to mental illness (although it’s been said that half of America is on Prozac, and the other half should be!).

Doctors do not like to talk about their patients, nor do mentally ill people want to discuss their problems. Frequently, a mentally ill person is not cognizant of how their illness affects their ability to make decisions or parent effectively. When a person does not accept their level of illness, it is even more difficult to obtain records from doctors and prove in court.

The Take-Away

HIPAA makes obtaining records as evidence increasingly complicated.

For the practitioner, HIPAA violations are avoidable when the court determines that the importance of the records outweighs privacy concerns. Still, the doctor is not a party to the action and cannot be ordered to produce records—the right to do so is discretionary.

In lieu of proof, a negative inference can be made, and the allegation of mental illness might be assumed to be true. Contact us to discuss this in more detail or if you have any questions about how allegations of mental illness affect custody cases.


Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415
718-268-0279
Website: PlaineKatz.com
Email: josh@plainekatz.com, mark@plainekatz.com

It Is in Your Child’s Best Interests to Settle Custody!

It Is in Your Child’s Best Interests to Settle Custody! by Joshua Katz

{2:15 minutes to read} Parents who are battling for custody in a divorce proceeding need to focus on their children’s interests—and settle

Parents know their children better than anyone else in the world. And so, it is important that both parents work together to craft a custody arrangement that is best for their child. And settle! 

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Jewish Custody Determinations by the Secular Court

Jewish Custody Determinations by the Secular Court by Joshua Katz

{8:00 minutes to read} “When a person has a judgment adjudicated by gentile judges and their courts, he is considered a wicked person.” Rambam, Hilchos Sanhedrin, 26,7.

As a custody litigator, my cases invariably involve litigants whose emotions run high while they battle over who is the most appropriate parent. An extra layer of complication comes into play when the secular courts are confronted with issues of religious observance as they affect the best interests and moral wellbeing of children. While the secular courts cannot make rulings based upon their interpretation of religious dogma, the courts are invariably faced with situations where they must assess the religious practices of the parties in reaching a decision as to issues of custody and parenting rights.

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Gratitude & Pride: Reflections on My Career Choice

Gratitude & Pride: Reflections on My Career Choice by Joshua Katz

{4:30 minutes to read} March 25, 2016, was a typical, average day, but it was significant for me. It was one of those rare days that confirmed that I love what I do.

I was in court handling three (3) cases where the court had to determine the best interests of three (3) very distinct children. Despite the very challenging and heart-rending circumstances to which I am privy on a daily basis, I am proud when my job makes a difference in the world — as a child advocate.

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Supervised Visitation: When Is It Best for the Child?

Supervised Visitation: When Is It Best for the Child? by Joshua Katz

{2:10 minutes to read} Normally, a child’s best interests are best protected by allowing the development of the fullest possible healthy relationship with both parents. However, if one parent places the child’s physical safety at risk, or the parent is having some other kind of negative impact on the child’s emotional well-being, supervision of visitation can be imposed.

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Who Gets the Kids This Holiday?

Who Gets the Kids this Holiday? by Joshua Katz

{3:30 minutes to read}

When putting together a parenting plan, attorneys should be aware of all religious holidays, as well as civil holidays, that are important to the client. It goes without saying that children are to be with their mothers for Mother’s Day and their fathers for Father’s Day. But what about the rest of the holidays?

I can’t tell you how many clients I was dealing with on an emergency basis the week before Mother’s Day this year, because the clients couldn’t work out arrangements without help from counsel.

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Equal Parenting Rights is NOT a Presumption of 50/50 Time

Equal Parenting Rights is NOT a Presumption of 50/50 Time By Joshua Katz

{3:30 minutes to read} The laws in NY include no presumption in favor of one parent versus the other. However, there is no presumption in the law that parents are entitled to 50/50 time with their children. While equal access rights do exist, it does not mean that each parent is entitled to exact equal time with the children.

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