TBA Law Blog

Posted by: Siew-Ling Shea on Jul 1, 2013

Journal Issue Date: Jul 2013

Journal Name: July 2013 - Vol. 49, No. 7

When a Child’s Best Interests Are at Issue

Trying to get inside someone’s mind has never been more challenging. We lawyers have to depend upon mental health care providers to tell us what is wrong or right about their patients/our clients. While mental illness, emotional, psychiatric and psychological problems are growing social problems, getting access to the information about someone’s mental health condition has never been harder. This issue is so important that this year it even got the attention of the Tennessee legislature. Interestingly, communications between psychologists and patients are placed upon the same basis as those provided by law between attorney and client.[1] Thus, psychologist communications are confidential and privileged, unless waived.[2] Communications between psychiatrists and patients are similarly privileged, with limited exceptions,[3] such as:

When a patient raises the issue of the patient’s mental or emotional health;

When a psychiatrist was ordered by the court to examine the patient;

To establish that the patient poses a substantial likelihood of serious harm requiring involuntary hospitalization; and

Patient made actual threat to physically harm someone and has apparent capability to commit act in the near future.

These limited exceptions form the basis for obtaining mental health records and present a challenge in domestic cases. For example, in custody matters, a court is instructed to consider the “mental health” of parents and caregivers to determine what is in the child’s best interests.[4] In determining a permanent parenting plan schedule, either in a divorce or subsequent modification, the court is also instructed to consider the “emotional fitness” of each parent.[5] One factor resulting in restrictions to a parent’s residential time in a temporary or permanent parenting plan is “emotional impairment” that interferes with the parent’s performance of parenting responsibilities such as providing for a child’s emotional, intellectual, moral and spiritual development.[6] How is a court able to consider the mental health of parents in custody or parenting time modification cases when parents have a statutory right to privacy over their mental health records?

Often, lawyers have to take what their clients tell them about the other parent with a grain of salt. What do you do when your client comes in and tells you that their spouse is a “nut job”; or is “bipolar” and wreaks havoc with unpredictable mood swings and erratic behavior; or has an anger problem and is verbally, physically or emotionally abusive; or has an addiction to alcohol or drugs; or has been suicidal; and/or suffers from depression? Many times these terms are overused or contain exaggerations, but how can we as lawyers know where the truth lies? If the person’s spouse had previously been treated or is being treated by a mental health professional for mental health or substance abuse issues or domestic abuse, written discovery or subpoenas issued for that spouse’s mental health or psychological/psychiatric records typically result in a HIPAA or confidentiality objection and a motion to quash.[7] Then, the court has to weigh the above statutory exceptions and consider the need to protect privileges in light of the need to find the child’s best interests. Two recent cases in 2012 illustrate the conundrum facing our courts in protecting privileged communications and in safeguarding the best interests of minor children.

The first case, Herman v. Herman,[8] was a post-divorce custody modification appeal from the Eighth Circuit Court for Davidson County, Tenn., where Mother had primary residential possession of the minor child. Mother’s mental health deteriorated after the divorce, which resulted in several extended hospitalizations. Father sought to change custody and wanted discovery of Mother’s mental health records. Mother objected and a competing motion to compel and a motion to quash were filed. Father argued that obtaining Mother’s mental health records through discovery was quicker, more insightful, and less expensive. The trial court agreed and ordered that Mother’s mental health records be filed under seal with the court clerk. Mother filed an extraordinary appeal under Tenn.R.App.P.10, and the Court of Appeals reversed the trial court’s ruling. According to the Court of Appeals, Middle Section, Mother’s claim of privilege trumps, even though Mother’s mental health records might have helped the court determine if there has been a material and substantial change of circumstances since the divorce, in weighing which parent is comparatively more mentally fit to care for the child, and what custodial arrangement would have been in the child’s best interest. The appellate court opinion however held that Father may seek a Rule 35.01 mental health examination of Mother if he can establish that Mother’s mental health is “in controversy” and that “good cause” exists for the examination. This would fall under the exception in Tenn. Code Ann. §24-1-207 when a psychiatrist (not a psychologist) is court-appointed to do the assessment.

The second case, Culbertson v. Culbertson,[9] was a divorce custody case from the Western Section of the Tennessee Court of Appeals. Wife accused Husband of physical and emotional abuse to her and the parties’ children. Wife issued subpoenas for Husband’s psychological records from three psychologists. A motion to quash and a competing motion for release of Husband’s psychological records were filed. The trial court granted Wife access to Husband’s psychological records subject to a protective order. The Court of Appeals for the Western Section modified the lower court’s decision after determining that it erred in allowing disclosure of Husband’s psychological records to Wife without properly considering the application of the psychologist-client privilege, or whether Husband had waived the privilege. However, unlike the Herman decision, the Western Section Court of Appeals allowed Husband’s psychological records to be disclosed to the trial court for an in-camera review for the purpose of conducting the comparative fitness analysis, to be followed with an entry of an appropriate protective order on remand. The children’s best interest in this case outweighed a parental right to privacy.

A possible reason for allowing in-camera review of protected psychological records was the trial court’s significant concern over an alleged knife incident by Father at church, which is a mental health issue that could impact custody and pose a specific harm to the children. The Culbertson opinion recognizes that parental assertion of privilege to mental health records presents a more difficult issue in child custody cases because courts must determine the child’s best interests in light of the comparative fitness of the parents.[10] In camera review of the psychological records allows the trial court to conduct a comparative fitness analysis and comply with the requirements of determining if privilege or waiver exists. If psychologist-client privilege does exist and has not been waived by Mr. Culbertson, the Culbertson decision seems to imply that absolute privilege is merely in theory. Although in camera review has the benefit of giving courts more control over sensitive information, there is little guidance in our laws on what happens after a judge conducts such an examination. If the evidence is relevant and used substantively by the court in its decision, the parties and/or their counsel need the opportunity to review the mental health records and to introduce them as an exhibit under seal, so that the contents of the mental health records underlying the court’s articulated findings of fact and conclusions of law would be preserved for the record on appeal.

Typically, custody cases do not, by themselves, amount to an automatic waiver of the psychotherapy privilege.[11] However, in the emotionally fraught circumstances of domestic disputes, mental health impairment issues cannot be taken lightly because additional treatment may be required or protective measures, such as supervised parenting time, may be needed for the safety and well-being of the minor children.

There is also statutory authority for confidentiality of alcohol and drug abuse patient records under 42 C.F.R. §2.1. The procedure for disclosure of such records in civil cases requires an order granted after application showing good cause.[12] In assessing good cause, the court weighs:

Public interest; and

Need for disclosure against injury to the patient, to the physician-patient relationship and to the treatment services.[13]

Then the court will impose appropriate safeguards against unauthorized disclosure.[14]

If the spouse is a recovering alcoholic who has been sober for some period of time, is such a request for privileged records oppressive and unreasonable? Is the request a fishing expedition intended to intimidate and hamper recovery? Can the information gleaned from privileged communications be used for harassment or improper purposes? These are difficult questions to which there are no easy answers and would depend on the unique facts of each case.

In 2013, Senate Bill 0028/House Bill 0068, passed as amended (Public Chapter 220) and established how a court may consider the mental health records of a parent when making a child custody determination.[15] The new law seems to recognize that children deserve healthy parents and parents need to be healthy for their children’s best interests, and parents’ mental health records provide useful information for the courts. The new legislation modifies Tenn. Code Ann. 36-6-106(a)(5) as follows:

Tenn. Code Ann., Section 36-6-106(a)(5), is amended by deleting the semicolon (;) and adding a period (.) at the end of the subdivision, and is further amended by adding the following language after the language “caregivers.”

The court may, when it deems appropriate, order an examination of a party pursuant to Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party pursuant to §33-3-105(3). The court order required by §33-3-105(3) shall contain a qualified protective order that, at a minimum, expressly limits the dissemination of confidential protected mental health information for the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings.[16]

Interestingly, this new law applies to only Tenn. Code Ann. §36-6-106, which includes the factors applicable to custody determination, and not to Tenn. Code Ann. §36-6-404, which lists the factors used for determining residential parenting time, and not to Tenn. Code Ann. §36-6-406, which gives the limiting factors resulting in restrictions to parenting time.[17] This new law appears to provide courts with greater discretion over determining the “necessity” of the mental health records for the conduct of the legal proceedings. This new law could conceivably be interpreted as changing the typical “good cause” standard and the burden on the petitioner to show “good cause” before access is granted. One could make the argument that it will always be necessary for the conduct of child custody and parenting time proceedings to have access to mental health records because Tennessee statutes require the court to consider the “mental health,” “emotional fitness” and “emotional impairment” of parents and caregivers in conducting best interest of the child analysis.[18]

However, will this law deter parents from seeking mental health help that could have led to recovery from a mental health condition, saved the marital relationship and/or made them better parents?

Does this new law in Tennessee present a conflict between federal and state law on confidentiality of mental health records? If privileged communications between psychologists and their patients, which are placed on the same basis as those provided by law between attorney and client, can be opened up for scrutiny, what does that portend in the future for privileged communications between attorneys and their clients?[19] How about privileged communications with clergy? Does this new Tennessee law put mental health professionals squarely at odds with the legal and ethical obligations of their profession? Do psychologists and psychiatrists now have a duty and an ethical obligation to inform their patients that their “privileged and confidential” communications are not protected when children are involved?

These are not easy questions for a society grappling with mental health problems affecting families, and we will have to see what the courts do in the future to resolve these conflicts.


  1. Tenn. Code Ann. §63-11-213.
  2. Kirchner v. Mitsui & Co. (USA) Inc., 184 F.R.D. 124, 129 (M.D. Tenn.1998).
  3. Tenn. Code Ann.§24-1-207.
  4. Tenn. Code Ann. §36-6-106.
  5. Tenn. Code Ann. § 36-6-404.
  6. Tenn. Code Ann. §36-6-406(d)(2).
  7. The impact of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or the interface between HIPAA and state law would need to be analyzed and dealt with by anyone seeking disclosure of psychotherapy notes or other protected health information related to mental health, which is beyond the scope of this article.
  8. Herman v. Herman, 2012 WL 1655717 (Tenn.Ct.App. May 19, 2012).
  9. Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn.Ct.App. May 23, 2012).
  10. Culbertson, at *4.
  11. Culbertson, at *5.
  12. 42 C.F.R. 2.1(b)(2)(C).
  13. Id.
  14. Id.
  15. SB0028 introduced by Senator Mae Beavers, R-Mt. Juliet, District 17 and HB0068 introduced by Representative Terri Lynn Weaver, R-Lancaster, District 40, seeking to amend Tenn. Code Ann. Title 10; Title 33; Title 36 and Title 63. On April 1, 2013, the Senate adopted Amendment No. 1 and passed Senate Bill 0028, as amended. House Bill 0068 was amended to conform to the amended Senate Bill 0028, and passed on April 16, 2013.
  16. See the Tennessee General Assembly website for details. At the writing of this article, Amendment No. 1 to Senate Bill 0028 has not made its way into Westlaw to amend Tenn. Code Ann. §36-6-106.
  17. See Davidson v. Davidson, 2010 WL 4629470 (Tenn.Ct.App. Nov. 15, 2010), FN2 which states that while there is little substantive difference between the factors applicable to parenting plans, Tenn. Code Ann. §36-6-404(b), and those applicable to custody determinations, Tenn. Code Ann. §36-6-106, the designation of a primary residential parent and the determination of residential parenting time are controlled by the 16 factors outlined in Tenn. Code Ann. §36-6-404(b), and not by the 10 factors in Tenn. Code Ann. §36-6-106.
  18. Tenn. Code Ann. §§36-6-106, 36-6-404 and 36-6-406
  19. 19. Thanks to this contribution from Greg D. Smith Esq., Stites & Harbison PLLC, Nashville, Tennessee.

Siew-Ling Shea SIEW-LING SHEA is with the law firm of Rogers, Kamm & Shea in Nashville, and has been with the law firm since May 2001, first as a paralegal, then as an attorney. Her primary areas of practice are in family and probate law. Shea graduated from the Nashville School of Law in the top 10 percent of her class and is a member of the Honorable Society of Cooper’s Inn. Her undergraduate degree is from the University of Michigan, Ann Arbor, where she received a double major in communication and sociology. She is also a Rule 31 Listed Civil Mediator and trained in Collaborative Law..