Posted by Nydia Streets of Streets Law in Florida Child Custody
When a child sees a therapist or other mental health professional, can a parent request the records of the therapy sessions? The patient-therapist privilege, in the case of a minor, belongs to the minor’s parent or guardian. However, a court can hold that a parent is barred from waiving the privilege. This was an issue in the case Bentrim v. Bentrim, 4D21-1303 (Fla. 4th DCA March 9, 2022).
In proceedings that arose after their divorce was finalized, the parties were ordered to agree on a counselor for their minor child and it was ordered that “[a]ll communications between the child and her therapist shall remain confidential as provided in Florida law, Section 90.503, Florida Statutes.” The former husband filed a motion for contempt against the former wife concerning this order, alleging she failed to agree to a mutually acceptable counselor. At a hearing on the motion, a social worker who previously treated the child testified that she sent notes about her treatment to both parents pursuant to the former wife’s request. The former husband then moved for contempt against the former wife on the basis that she violated the court’s order that the communications between the child and her therapist would remain confidential. The court granted this motion, sanctioning the former wife and holding that the notes could not be used in any future proceedings. The former wife appealed.
The appellate court disagreed that the former wife should be held in contempt, holding “Although the April 2020 order stated that communications between the counselor and the child would be confidential, this was not sufficiently explicit to provide fair notice to the parties that neither parent could request these notes, since ordinarily parents have the right of access to their children’s records.” The court continued “We cannot interpret the plain language in the April 2020 order without considering its reference to the statute. The court order specified that the scope of confidentiality was ‘as provided in’ section 90.503, which gives the right of confidentiality to the patient. In the case of a minor, the privilege belongs to the guardian, which would be either Former Wife or Former Husband in this case. See § 90.503, Fla. Stat. (2019); [internal citation omitted]. Although the trial court could have found that Former Wife was barred from waiving the privilege, see Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301, 307 (Fla. 4th DCA 2001), the April 2020 order did not clearly and precisely ban her from requesting the social worker’s records, [internal citation omitted].”
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