Copyright: zimmytws / 123RF Stock Photo
Copyright: zimmytws / 123RF Stock Photo

Health care information (including mental health information) can be very  important in a family law case in many ways and for many different reasons.

In custody matters, the fitness of each parent is front and center of the case.  Often times, a parent’s medical and mental health history will be relevant to the issues that the court is deciding.  For example, does a parent have a medical condition that may impair his or her ability to parent? In one case I had, a parent of a young child suffered from diabetes, and was insulin dependent.  The other parent wanted to take the position that the parent’s risk of going into diabetic shock was so significant, that overnight parenting time should not be permitted by the court.  Certainly, this was an important factor, and obtaining the records was critical.

In a more common situation involving custody, when parents cannot agree on custody, a forensic psychologist is often engaged to evaluate the parties and make a recommendation to the court.  That evaluator will need access to the medical and mental health records of both parties in order to make a thorough assessment.  If one parent knows that the other has  a mental health disorder, or has had counseling for any issue, it is important to be sure that records are obtained. Conversely, often times a parent in a custody dispute will allege that the other suffers from a disorder, and records will be necessary to refute that claim.

In support cases, one party may be taking the position that he or she cannot work at all, or cannot work to full capacity due to a medical condition.  In such a case, medical records will be necessary in order to either substantiate, or refute such a claim.

HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. The primary goal of the law is to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs. Health care providers will need a waiver from the patient prior to releasing any medical records to a third party.  A party to an action cannot hide behind HIPAA and claim his or her right of privacy in order to avoid the records being produced.  The court has the authority to order the release of the records in order to make a decision, particularly when the best interests of minor children are involved.

Generally, the court’s will not order records unless the party whose records are being sought has put his or her health “in issue.” In other words, a litigant cannot use the case to go on a fishing expedition.  On the other hand, a supported spouse cannot claim that he or she needs alimony due to an inability to work full time as a result of a medical condition, and then refuse to release the records.

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