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

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