People seek therapy or other mental health treatment for a variety of reasons: to deal with depression or anxiety, to overcome childhood trauma, to learn healthy coping mechanisms, or to deal with current life stressors. Family law clients who have been in counseling, or would like to seek counseling, often worry about the impact it might have on their cases. Many worry specifically that needing therapy might make them look unstable or unfit to care for their children when their mental health records are exposed to the court.
As a general rule, attorneys encourage clients who feel that they need mental health treatment to pursue it. Contrary to what many people fear, acknowledging that you need help, and then taking steps to get it, demonstrates maturity and responsibility. That generally reflects favorably on a parent during a custody determination.
However, individuals in family law matters in Ohio should be aware of a 2020 Ohio Supreme Court ruling regarding the confidentiality of their mental health records in those proceedings.
Torres Friedenberg v. Friedenberg
In the case of Torres Friedenberg v. Friedenberg, the Ohio Supreme Court ruled that a person whose spouse was seeking spousal support or child custody in a divorce may obtain the spouse’s confidential mental health records that are relevant to the proceeding.
When a person seeks treatment from a psychiatrist or other mental health professional, those records are ordinarily confidential by reason of the physician-patient privilege. If such a privilege did not exist, patients might not feel comfortable disclosing sensitive information to treating professionals.
In the Friedenberg case, Belinda Torres Friedenberg filed for divorce from her husband, Keith A. Friedenberg, and asked the trial court for spousal support and custody of the couple’s children. The defendant counter-sued for custody. In the trial court, Keith Friedenberg subpoenaed the mental health records of his wife, Belinda. Belinda attempted to quash the subpoenas, arguing that her mental health records were protected by physician-client privilege and HIPAA.
Keith then filed a motion to compel the production of the mental health records, and the trial court granted the motion. The court reasoned that Belinda had made her physical and mental health an issue in the divorce by seeking spousal support and child custody. Therefore, the records were relevant to the case. The court ordered the release of the records, subject to a protective order which limited their dissemination to the parties, their attorneys, and any experts used in the case. Belinda appealed the trial court’s decision.
The Eleventh District Court of Appeals affirmed the trial court, finding that a party seeking spousal support or child custody waives the physician-patient privilege. The Ohio Supreme Court upheld the Court of Appeals’ ruling, observing that “The General Assembly has made consideration of the parties’ physical and mental health not only relevant but mandatory in determining both child custody and spousal support.” Accordingly, a mental health provider can be compelled to produce the records for the trial court to review privately to determine if they are relevant to the case.
This decision from the Ohio Supreme Court follows a line of cases that includes Gill v. Gill, 2003-Ohio-180, a 2003 Cuyahoga County Appellate case in which Mother objected to the release of her mental health records, citing their privilege. The Court, relying on Ohio Revised Code §3109.04(F)(1) reasoned as follows:
Under this statute, the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action. Whenever custody of children is in dispute, the party seeking custodial authority subjects him or herself to extensive investigation of all factors relevant to the permanent custody award. Of major importance, as stated in R.C. 3109.04(F)(1)(e), is the mental and physical health of not only the child but also the parents. R.C. 3109.04 places the mental conditions of all family members squarely in issue.
Gill v. Gill, 2003-Ohio-180, at ¶18
As such, Ohio law clearly supports the position that mental health records can and should be disclosed when a parent files a motion regarding custody of the minor child (allocation of parental rights and responsibilities).
In a dissent to the Supreme Court opinion, Justice DeWine asserted, “Contrary to the lead opinion’s contention, then, parties to a divorce do not subject themselves to a fishing expedition through all of their physical- and mental-health records simply by seeking custody of their children or financial support from their spouse.” While Ohio law does provide narrow exceptions to physician-patient privilege, Justice DeWine stated that the language of the statute only permits the release of medical records that relate to a “physical or mental injury” relevant to an issue in the case.
Confidentiality of Mental Health Records in Ohio Divorce and Parenting Cases
The Ohio Supreme Court has set a significant precedent regarding mental health records with its decision in Torres Friedenberg v. Friedenberg. A party’s mental health, under long standing Ohio law, is a factor to be considered in child custody and spousal support determinations. In light of the Supreme Court’s ruling in this case, it is reasonable for parties to be concerned that if they want custody of their children or request financial support for themselves, their records could be released to their estranged spouse or partner.
Attorneys have reason to be concerned as well. We want the best for our clients and their children. Clients may feel that they are faced with the impossible choice of getting the care they need and protecting their records, or pursuing custody or support. No one should have to sacrifice their rights in order to protect their privacy.
Not every parent who has seen a mental health counselor or therapist need be worried. The maturity to determine there is an issue and to deal with it, following the recommendations of the therapist and being compliant with medications and talk therapy, is much more important than an individual diagnosis. Conversely, a lack of acceptance of the presence of any problems and being in denial of any issues having an effect on a person’s daily life are far more significant than the mere presence of mental health issues. How a person deals with concerns and takes reasonable steps in addressing them shows a capacity to parent and be a safe caregiver for children.
In the wake of the Friedenberg decision, it is more important than ever for divorcing spouses or people litigating custody issues with a history of mental health treatment to have experienced, compassionate counsel. If you are concerned about your privacy, your custody rights, or your access to spousal support, please contact Graham-Hurd and Associates.