Magazine article Developments in Mental Health Law
Parent May Be Denied Access to Child's Mental Health Records during Divorce and Custody Proceedings
Children may be receiving mental health services while their parents are in the process of becoming divorced. During a custody dispute, a parent may seek to gain access to a child's mental health records in an effort to establish through the discussions between the child and the child's therapist that the other parent has engaged in inappropriate conduct. Although parents generally have a right to access the mental health records of their children, the New Hampshire Supreme Court ruled that this right is significantly limited when asserted in connection with divorce proceedings and custody disputes.
In the case before the court, the father alleged that the mother had alienated his children from him, and sought access to the records and notes of the children's therapists to obtain supporting evidence for his claim that the mother interfered with his right of visitation. While acknowledging that parents have a constitutional right to raise and care for their children, the court noted that in a custody dispute there is a "distinct possibility" that a parent will not make a decision regarding access to the child's mental health records based on the child's best interests.
Indeed, the court added, in this context it may be the parents that are the source of the child's distress and allowing parents unfettered access to their children's therapy records may inhibit the child from seeking or succeeding in treatment, and forced disclosure may result in substantial emotional harm to the child. Further, denying a minor the opportunity to at least object to the involuntary disclosure of his or her therapy records in this context is likely to have a negative effect on the minor's relationship with the therapist and taint the child's perception of the fairness of the legal process. …