Admissibility Of Parent Mental Health Records In Child Custody Cases


Posted on September 24th, 2012, by James Livesay in Custody, Family Law. Comments Off

There is an ongoing debate in Virginia as to whether a parent’s mental health records should be admissible in custody and visitation cases. Prior to July 2008, Virginia Code Section 20-124.3:1 specifically provided that the mental health care records concerning a parent in a custody and visitation case are confidential. In 2008, that provision was repealed, and we are now in a period in which a parent will routinely allege that the other parent is practically insane and therefore an unfit parent, and will attempt to prove it by the introduction of what were once confidential medical records.

The question of the admissibility of a parent’s mental health care records features a tug-of-war between a person’s right to confidentiality and the court’s duty to act in the best interest of the child. The question is complicated by Virginia Code Section 8.01-399, which acknowledges that there is a doctor-patient privilege of confidentiality. With that provision in place, we are left with parents arguing for the admissibility of records based on the repeal of Section 20-124.3:1 and parents arguing against admissibility based on the privilege found in Section 8.01-399.

Clearly, the court has a need to confirm that it is acting in a way that is best for the child, and not placing the child in a harmful environment. Virginia Code Section 20-124.3 requires the court to consider the physical and mental condition of each parent in deciding what is in the best interest of the child in custody and visitation cases. On the other hand, it is important that a parent in need of treatment feel comfortable and encouraged to seek mental health treatment, and that the parent not avoid treatment due to the fear of having his or her medical records disclosed. Further, the fact that a parent is receiving treatment for a mental health condition does not alone prove that parent unfit. Whether the treating parent is fit will revolve more around how that parent is managing his condition. Moreover, if the court finds it necessary, the court has the power to order the mental evaluation of either parent in a custody case. Ultimately, the court’s goal is to establish a custody and visitation arrangement that is in the best interest of the child.

The present state of the law allows for inconsistent rulings among the courts as to the admissibility of a parent’s mental health records. There are arguments to support both sides of the admissibility issue. If the mental health of a parent is an issue in your custody case, you should seek the advice of an experienced custody attorney.

The child custody attorneys at Livesay & Myers, P.C. are experienced in presenting to the court all factors to be considered in custody and visitation cases. We represent clients in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.

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About 

Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.



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