Posted by Nydia Streets of Streets Law in Florida Child Custody

Can a parent’s mental health records be subpoenaed in a Florida child custody case? The answer depends on what is at issue - is the parent being accused of having a mental health issue which affects his or her ability to parent? In the case Ricketts v. Ricketts, 2D19-3854 (Fla. 2d DCA June 19, 2020), we see a case in which it was ultimately ruled that discovery of the mother’s mental health records was inappropriate.

As part of the discovery process in their divorce proceedings, the husband issued notice of his intent to subpoena the wife’s mental health records from various third parties. Neither of the parties’ pleadings asserted that mental health was an issue. However, the husband argued these records were relevant and the wife’s mental health was at issue because he served upon the wife interrogatory responses which indicated he believed her mental health was at issue with regard to child custody matters.

After a hearing on the wife’s motion for protective order and to quash the subpoenas, the court denied her motion in part, ruling the records should be produced to the wife’s attorney, and then the attorney would turn over any non-privileged documents and create a privilege log. If there was a dispute as to what was turned over, an in-camera inspection could be performed to determine if the remaining documents should be produced. The wife filed a petition for writ of certiorari with the appellate court.

The appellate court agreed with the former wife that the order should be quashed. The court held “The law with regard to a party's medical records in dissolution proceedings is clear. Requesting custody, time-sharing, or parental responsibility does not place a party's mental health at issue. Neither parent has alleged that the other is unfit to have time-sharing with their children. [. . .] Finally, before a court can order production of privileged records, even through in camera inspection, it must first determine that the party asserting the privilege has waived it. [internal citation omitted] Thus, even though the trial court in this case ordered in camera inspection of any documents in the Wife's privilege log, that was error where the court did not apply the law requiring a finding that the privilege had been waived.”

Having a Florida divorce lawyer on your side is important to preserve your rights. Schedule a meeting with a Miami child custody lawyer to go over how the law may apply to your case.