Jesse Goldner, JD

Continuing Education Information

Most psychologists at least have a general idea about the U.S. Supreme Court’s ruling some fifteen years ago in Jaffee v. Redmond[1].  There the court reviewed a patient-defendant’s claim of psychotherapist-patient privilege[2] in a personal injury action. The plaintiff sought to gain access to the defendant’s therapist’s records to assist in proving the defendant’s liability. This article will review the current state of claims of privilege in child custody, visitation, and child abuse litigation since the decision in Jaffee. After reviewing that case it will identify limitations that may not be well recognized within the psychologist community. It will focus on a number of judicial opinions issued after Jaffee (as well as some pre-Jaffee cases that remain good law) which seem to represent current judicial thought on these matters. The issues involved are significant not only for child psychologists, but also for therapists who may primarily treat adults, as information learned during such treatment sessions, and notes about them, may be subject to disclosure. Beyond that, there is a need to recognize the distinction between a privilege and the obligation of confidentiality to which it is often related.[3] Some may be surprised to learn the significant differences in approaches that various courts have taken to privilege claims both before and after Jaffee, despite the almost absolute language in Jaffe upholding the privilege.

The Facts of Jaffee v. Redmond

In Jaffee, police officer Mary Lu Redmond, the defendant in the litigation, had answered a “fight in action” call.[4] When the officer arrived, she shot Ricky Allen to prevent him from stabbing another man.[5] Subsequently Carrie Jaffee, the administrator of Ricky Allen’s estate, sued Redmond in an Illinois federal district court alleging that Redmond violated Allen’s constitutional rights.

When Jaffee learned that Redmond had participated in some fifty counseling sessions with Karen Beyer, a licensed social worker, regarding her actions,[6] she sought to obtain a copy of Beyer’s notes. Jaffee maintained that this would enable her to cross-examine Redmond more effectively.[7] In response to the discovery request, Redmond claimed that the notes contained privileged communications. The trial judge refused to recognize the claim of psychotherapist-patient privilege and neither Redmond nor Beyer, complied with his order to disclose the contents of Beyer's notes. At both depositions and on the witness stand each woman either refused to answer certain questions or claimed an inability to remember details of their conversations. In his instructions to the jury at the end of the trial, the judge advised the jury that the refusal to turn over Beyer's notes had no “legal justification.” Consequently, the instruction indicated, the jury could presume that the contents of the notes would have been unfavorable to Redmond. The jury awarded Jaffee substantial monetary damages.

The parties appealed the judge’s rulings, ultimately to the U.S. Supreme Court, which essentially would be deciding whether federal courts should recognize a psychotherapist-patient privilege under the Federal Rules of Evidence and, if so, what its breadth should be.  The Court was asked whether that privilege extended also to social workers.[8]

The Development of the Psychotherapist-Patient Privilege in American Courts

Historically, courts in each individual jurisdiction developed rules of evidence through the common law or “case law.”  With respect to privileges, however, early common law only recognized an attorney-client privilege. Over time, states have created a variety of other privileges, largely through legislation. Most typical was the physician-patient privilege, but since the general rule has always been that each litigant “is entitled to everyman’s evidence,” courts have tended to read these legislatively created privileges quite narrowly, frequently creating limitations and exceptions. Thus, for example, as a rule, the physician-patient privilege does not apply in criminal cases. Nor does it apply where a patient-plaintiff claims malpractice by the physician. The attorney-client privilege disappears where the consultation by the client is in an effort to facilitate a future crime. Some states recognize few privileges, others many, with different states frequently giving broader or narrower judicial interpretations of those privileges that are recognized. It is fair to conclude that state approaches to privileges, in general, and to the psychotherapist-patient privilege in particular, form “a crazy, inconsistent patchwork quilt.”

In 1972 Congress “codified” and (in some instances altered and modernized) the existing federal court case law on evidence, by adopting the “Federal Rules of Evidence.” These Federal Rules, as interpreted by the federal courts and particularly the U.S. Supreme Court, are binding in trials in all federal courts and in a variety of other proceedings such as administrative hearings before federal agencies and in Congressional hearings. Since then, over forty states have adopted the Federal Rules for their own state court systems albeit, on occasion, with some modifications. Those state rules are binding within the particular state. States that have not codified their rules of evidence continue to rely largely on the common law of evidence as it has developed in that state. Except in situations where the Supreme Court has found a Federal Rule, or the Court’s interpretation of a Rule, to be required by the U.S. Constitution, states are free to interpret their own versions of the Federal Rules or their equivalent common law rule of evidence as they see fit. Therein lies the rub.

The Contemporary Status of the Psychotherapist-Patient Privilege in Federal Courts

While practically all of the Federal Rules are precisely stated, leaving only limited room for judicial interpretations or “glosses,” when it came to promulgating the rules on privilege, Congress did something unique. Under Federal Rule of Evidence 501[9] Congress left it to the various federal courts to develop a “federal law” of privilege “in the light of reason and experience.” Previously, some federal courts had recognized the privilege while others had refused to do so.[10]

Jaffee was the first U.S. Supreme Court case to analyze the meaning of Rule 501 as it was to apply to psychotherapists and patients. By a 7-2 majority the Court declared that federal courts were to recognize the privilege for statements made to psychotherapists in confidence during therapy.[11] Justice Scalia, arguing in dissent, took the position that any such claim of privilege should be subject to a case-by-case analysis by the trial judge.[12] The Court further held that it did apply to statements to licensed social workers.[13] By implication, such recognition would also apply with respect to statements made to any licensed or certified mental health provider.
In deciding Jaffee, the Supreme Court placed great emphasis on the fact that “all fifty states and the District of Columbia have enacted into law some form of psychotherapist privilege.”[14] Moreover, the Court noted that the original Advisory Committee, which it had appointed, had proposed a rule for this privilege in the initial draft of the Rules.[15] Congress, however, had failed to adopt that provision as well as all of the other proposed rules relating to privileges. Most importantly, the Court reasoned that the privilege would be good public policy.[16] It commented that, “[t]he psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.”[17]

Federal Court Exceptions to the Jaffee Rule

Redmond had initially appealed the trial court’s decision denying the claim of privilege to the 7th Circuit Court of Appeals. That court ruled in her favor, upholding the privilege. But rather than finding an absolute privilege, it stated that “we also note that the privilege we recognize in a case of this nature requires an assessment [by the trial judge] of whether, in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests.”[18] This was the position taken both by Justice Scalia in his dissent and by a number of state courts, as described below. The United States Supreme Court, however, rejected this approach,[19]  because of what the Supreme Court perceived as the need for certainty.
The Court recognized that to preserve the purpose of the privilege those participating in the confidential conversation have to be able to predict “with some degree of certainty” which discussions would be protected.  Moreover, quoting an earlier case concerning the attorney-client privilege, it noted that both an uncertain privilege and one seemingly certain but applied in different ways by the courts, “is little better than no privilege at all.”[20]

The Court then recognized the importance of confidence and trust for psychotherapy, and that for it to be effective patients had to be willing to reveal facts, emotions, memories and fears. It observed that the disclosure of communications about the particularly sensitive types of problems for which individuals consult with therapists could cause embarrassment and disgrace.[21]

Although the Court seemed to recognize an absolute psychotherapist-patient privilege under the facts of Jaffee, it did note that there could be exceptions to the privilege. In its critical footnote 19, it declared that:

[a]lthough it would be premature to speculate about most future developments in the federal psychotherapist-patient privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.22
Here, of course, the Court implicitly was recognizing the close connection between the doctrine of privilege that arises in litigation, and the professional, ethical obligation to maintain confidences outside a judicial or related arena.

Justice Scalia, in his dissent in Jaffee arguing against the recognition of an absolute privilege, pointed out the variety of instances in which states that had adopted a psychotherapist-patient privilege, nonetheless found exceptions to that privilege in a number of instances.[23] He noted the typical “exceptions for commitment proceedings, for proceedings in which the patient relies on his mental or emotional condition as an element of his claim or defense, or for communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.”[24]  One can readily predict that it is likely that future federal courts will apply well-recognized exceptions such as these when asked to recognize the privilege. The present question here is whether the strong, absolutist language of Jaffee will have any effect in instances in which what is being litigated is a claim of child abuse or neglect or in the context of a child custody case. A parent could make a similar claim with respect to his or her therapeutic relationship with a psychotherapist, or by virtue of being the “natural guardian” of his or her child, with respect to the child’s relationship with a therapist. Likewise, a child or the child’s guardian ad litem might claim a privilege for communications made to the child’s therapist.

As noted earlier, Jaffee is a Supreme Court decision that interprets a provision of the Federal Rules of Evidence. The holding does not rely, however, on any provision in the U.S. Constitution and thus that interpretation is not binding on any state court.  Again, this is true even if the state has adopted its own version of the Federal Rules of Evidence. Moreover, due to a variety of legal doctrines and legislation such as the federal court’s “domestic relations exception” to federal court diversity jurisdiction[25] and the Indian Child Welfare Act,[26] it is very rare for a federal court to hear a matter related to child abuse or child custody, let alone one involving a claim of privilege. Consequently, it will usually be in a state court where a claim of privilege will arise, and that particular state’s law on the scope and limitations of its psychotherapist-patient privilege will apply.

Child Abuse Cases

a. Tarasoff-like situations

In many respects, child abuse cases present the easiest scenario in which to predict the likelihood of denial of claims of privilege. First, there is the clear analogy to the situation explicitly noted by the Jaffee court in that footnote nineteen of its opinion.[27] This concerned the release of information disclosed to a therapist by a patient where the disclosure suggested the reasonable possibility of a serious threat of harm to the patient or to others, and where a disclosure by the therapist to the third person, to law enforcement, or to other individuals perhaps could avoid such harm.

The Court seemingly was alluding to the rule that emerged from the Tarasoff[28] case in which the California Supreme Court imposed on a mental health professional a “duty to protect” (sometimes incorrectly labeled a “duty to warn”) third parties who the therapist learns may be facing danger.[29] Absent the Tarasoff rule, a patient successfully could sue a therapist for money damages in a tort action for violating the duty to the patient of maintaining confidences if the therapist took protective actions that involved a breach of the patient’s confidences.  One can readily understand that given Tarasoff and the Supreme Court’s explicit recognition of a probable exception for Tarasoff-like situations in Jaffee, courts are likely to impose the “duty to protect” doctrine in child protection cases as well. Consequently, a privilege would not exist when a patient tells a therapist of instances in which a child was, or is likely to be, a victim of child abuse. Certainly, as a matter of professional ethics, therapists should inform individuals who enter therapy that the obligation of confidentiality is not absolute in these situations. The Tarasoff case did not involve a breach of privilege. Nonetheless, judicial or legislative recognition of an exception to the obligation of confidentiality typically will signal a similar recognition of the absence of the right to claim a privilege and vice-versa.

b. State abrogation of the privilege in child abuse cases

Efforts to claim that the obligation of confidentiality for information disclosed during psychotherapy trumps the obligation to report child abuse have been uniformly unsuccessful. The same also applies to claims that the psychotherapist-patient privilege enables the patient to keep the therapist from testifying in such cases.

In 2005, the Alabama Supreme Court decided Marks v. Tenbrunsel,[30] a case demonstrating both of these conclusions.  Marks met with Dr. Tenbrunsel, a psychologist employed by Alabama Psychological Services. According to Marks, the psychologist assured him that anything Marks told him during their meeting would remain confidential. Marks then admitted to sexually fondling two females under the age of 12. After consulting with a colleague also named as a defendant in the lawsuit, the psychologist told Marks that he would not honor the confidentiality agreement, and that he would report the information to the county child protective services agency.[31] Marks brought a civil action against the psychologists alleging malpractice and a variety of related claims for their actions that resulted in his criminal prosecution. He claimed damages for mental anguish, health problems, and monetary loss. The court granted the defendants’ motion for a judgment of dismissal and Marks appealed. The Alabama Supreme Court, however, affirmed the dismissal. It did so by reaching two separate conclusions.

First, in reviewing a series of child abuse reporting statutes in other jurisdictions, it concluded that under those provisions, a person making such a report in good faith, or in participating in a judicial proceeding that resulted from such a report, was entitled to “immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.”[32] Moreover, “[b]ecause Marks admitted to the abuse of the two children [the psychologists] had reasonable causes to suspect that children were being abused.  . . . [and therefore] were acting in good faith . . . when they determined that a report should be made.”[33]

The second holding addressed the plaintiff’s claim that the psychotherapist-patient privilege trumped the immunity provision. Here, again looking to the position taken by other states, the Marks court noted that four different jurisdictions had taken one of two approaches. They either concluded that the psychotherapist-patient privilege had to yield to the child abuse reporting statute or that such a statute “vitiated [the] privilege and [the therapist] could be compelled to reveal the alleged sexual abuser's medical records in a civil action for damages.”[34] In most jurisdictions, the child abuse reporting statute on its face abrogates a privilege that may otherwise be applicable with respect to proceedings involving child abuse or neglect.[35]

There is one limited exception, however, that may exist to the general tenet that overrules the privilege in cases related to child abuse: namely, in criminal proceedings against an abuser. There courts have come to different conclusions regarding the permitted use of information contained in the child abuse reports. These decisions seem to depend upon the state court’s perception of the legislative purpose of reporting acts. On the one hand, some states will allow the admission of the fact that the actual report that was made, but require that the remaining psychotherapeutic information be excluded on a claim of privilege.[36] This occurs when courts of that state view the applicable child abuse reporting statute as targeting the protection of children, rather than the prosecution of the alleged abuser.[37] On the other hand, where courts in a state conclude that its child abuse reporting statute is directed to the prosecution of the abuser as well, they allow all privileged information between the abuser and psychotherapist to be admissible in a criminal proceeding.[38]

c. Positions of state courts in child custody cases

Child custody issues often confront judges, typically in the context of an original divorce or dissolution of marriage case, or in a motion to modify an existing custody order. In some instances, there will be a claim of psychotherapist-patient privilege by one of the parties, either with respect to disclosures made to his or her therapist or with respect to statements made to the child’s therapist. As in other privilege cases, the judge then is faced with two important societal interests. First, there is the interest in ensuring that the custody determination will be based on the maximum amount of information, including mental health information, that reasonably could be made available to the court. Second, there is the interest in fostering the flow of information between psychotherapist and patient that ought to occur in those special relationships covered by the doctrine of privileged communication recognized so well in Jaffee. These interests often clash in child custody or child protection proceedings, and courts must decide which interest takes priority.

There are a number of well-recognized exceptions to the physician-patient privilege that may well be deemed to apply to a psychotherapist-patient privilege. Thus, for example, typically there is an exception for communications made in an effort to perpetrate a crime or fraud. Likewise, ordinarily a claim for compensation for physical injuries allegedly sustained by a plaintiff in an automobile accident case would give rise to the right of the defendant to review the plaintiff’s past medical records. Such a review might allow the defendant to obtain evidence that the injuries may have arisen not from the accident in question, but rather from prior situations having nothing to do with the incident in question.

Similarly, in a disputed child custody case, a party may claim that the mental health of another potential custodian and/or the child is at issue and point to the rule that applies in accident and other cases. How a court will rule on a claim of privilege may depend on the precise allegations that a party makes regarding the other’s or the child’s condition, and the preliminary evidence that exists without breaching the privilege that would support contention.
In some jurisdictions, case law provides that seeking custody of a child automatically places the mental health of the family members at issue; other jurisdictions may follow the near absolutist position of the Jaffee case and require upholding the privilege in practically all instances. Finally, precedent in some states will give the court more discretion to determine the outcome of a claim of privilege.

While other recent cases on this question do exist, one of the most reasoned and often cited judicial opinions is in Kinsella v. Kinsella.[39] There, shortly after Jaffee was decided, the New Jersey Supreme Court was confronted with a series of claims and cross-claims in the context of a divorce proceeding.

The father filed for divorce on the ground of the mother's extreme cruelty and he sought custody of the parties’ three children. Among other allegations, he claimed that she had intentionally involved the children in the couple's arguments. Subsequently, the mother filed an answer and counterclaim, denying extreme cruelty on her part but claiming extreme cruelty by the father. She alleged that the father had undergone a change of character due to heavy use of alcohol and illegal drugs, and had abused her and the children, both verbally and physically, on a number of occasions. In later pleadings, the mother made numerous other claims of abuse by the father of both her and the children, including that as a result she required a number of surgeries. She too sought dissolution of the marriage and custody of the children, as well as favorable treatment on financial matters.[40] While the court explored many issues between the parties, the focus here will be limited to the custody issue.

The trial judge appointed a psychologist to assist initially in determining whether the father should have overnight visitation with the children. She held a series of meetings with both the parties and the children and consulted with another psychologist from whom the parties had received therapy some years earlier and from whom the father continued to receive individual therapy. Ultimately, she recommended that the father have overnight visitation on alternate weekends and mid-week dinners. She further suggested continued psychotherapy for both parents, as well as the appointment of a mediator/monitor to work with them to develop a co-parenting plan, supervise visitation and address further issues as they arose.[41]

The mediator, an attorney, reported to the court that he was unsuccessful in working out appropriate custody arrangements and it appeared that the case would proceed to trial. Looking to further litigation, the father sought an order compelling the mother to sign releases for her medical and psychological records. The mother contended, however, that the order should provide for each party to have access to all of the other party's psychological records, including the records of the father’s treating psychologist. She claimed that the father had revealed to his therapist a course of abusive conduct towards her and that she sought the records on the issue of legal custody and because of “the issue ... of anger and fault that is pervading this case.” The father objected to release of those records, claiming protection for the records by the psychologist-patient privilege under the relevant section of New Jersey’s rules of evidence. He also claimed that the mediator’s report provided sufficient information on his mental state for purposes of the custody and visitation issues.[42]

The trial court ordered the parties’ release of their psychological records to opposing counsel, noting that the parties themselves might read the records, but no release of the actual records to the parties would occur. The father appealed this order to the state’s intermediate appellate court, maintaining that his treatment records were privileged and that the information sought was available from less intrusive sources.[43] He attached the certification of his psychologist, who stated:

“In my professional opinion, forcing me to produce my treatment notes and records, and possibly testify regarding my therapy sessions with [the father] will cause him to suffer severe anxiety and humiliation. Additionally, I am extremely concerned that such disclosures could damage my relationship with [him], causing regression in his progress and undermine the therapeutic process. I am specifically concerned because if the substance of our conversations are [sic] revealed and used in the divorce proceeding, [he] will likely be far more cautious and far less candid with me in future therapy sessions out of fear that whatever he says may be revealed to the outside world and used against him.”[44]

The intermediate appellate court essentially agreed with the father,[45] but ultimately the case reached the New Jersey Supreme Court.

In its decision, that court recognized that a privilege against compelled disclosure of relevant evidence “runs counter to the fundamental theory of our judicial system that the fullest disclosure of the facts will best lead to the truth” and, consequently, that, in general, privileges are viewed narrowly in favor of admitting relevant evidence.[46] Nevertheless, the court further noted that the common law had recognized privileges against disclosure for certain types of communications, stating its four part, traditional rationale that:

(1) the privileged communications originate in confidence; (2) confidentiality is an essential element of the proper relationship between the parties; (3) the relationship is one that the community wishes to encourage; and (4) the injury caused by damaging the relationship through disclosure of the communications would be greater than the benefit gained.”[47]

The Kinsella court, quoting the Jaffee case, observed that while the psychotherapist-patient privilege was “a more recent development” in the law, it had been statutorily recognized in some form by all fifty states and the District of Columbia; it further reiterated Jaffee’s holding that a psychotherapist-patient privilege existed under Rule 501 of the Federal Rules of Evidence. It observed that the Jaffee Court had based its conclusion, in part, on its perception that confidentiality “is a sine qua non for successful psychiatric treatment.”[48] It further quoted the Jaffe Court’s comments noted above[49] to the effect that the privilege serves the public’s interest, that the mere possibility of disclosure could impede successful treatment, and that an uncertain privilege was little better than no privilege at all.

Kinsella observed that this was the first case in which it was asked to review the scope of the psychologist-patient privilege. First, it recognized the state’s adoption of the Tarasoff principle.[50] It also recognized the potential applicability of the patient-litigant exception: that by putting its mental or emotional state of health in issue in malpractice cases a party may have “waived” its privilege. Nonetheless, the court took some pains to acknowledge that such a situation would not necessarily require the automatic disclosure to the opposing party of all records. Rather, it suggested that to determine what should be disclosed it might well be appropriate for the judge to review such records in camera, so that the privilege would be pierced only to the extent necessary.[51]

With respect to child custody proceedings, the court favorably cited a child custody case decided in the pre-Jaffee era, piercing the psychologist-patient privilege in a case requiring the court “to conduct a ‘best-interests-of-the-child’ analysis in a child custody dispute.”[52] That case, however, involved the results of tests administered by a court-appointed psychological expert who testified at trial, not the therapy records of a treating psychologist.[53] The court noted that because of the unique nature of custody cases, the scope of the patient-psychologist privilege presented particularly difficult problems in them. Therefore, a trial court had to review a variety of factors in resolving such issues due to the court’s special responsibility to promote the interests of the child. The court recognized that to protect the child a court could not merely rely on the adversarial process. Consequently, it noted, courts depend on mental health professionals in implementing the “best-interest-of-the-child” standard. Moreover, while probation investigations and reports are significant, there is a need to give parties opportunities to utilize their own expert witnesses.[54]

It noted that information from psychological evaluations in preparation for litigation could be more helpful to the court than would be information obtained from the parents' prior treatment records, observing that they focus specifically on parental ability, while prior therapy may have had nothing to do with parenting. Such evaluations typically involve meetings with both parents and the children, albeit over a limited period of time and that family members could hide problems.  At the same time, however, “evaluators in most cases are able to detect serious issues of unfitness, [and they can consult] with any psychologists or psychiatrists who have been treating the parents or children.”[55]

The court reviewed cases in a number of other states, including California, Florida, Connecticut, Idaho, and Missouri, where their courts upheld claims of privilege in custody cases. Instead, those jurisdictions favored such court-ordered evaluations. The Kinsella court seemingly adopted that view for New Jersey, but proceeded to indicate that in very limited situations a court could breach the privilege.[56]

In so doing, it quoted an oft-cited opinion of a New York court, applying a balancing-of-interests test.  That court held that if invading protected communications was necessary to decide a custody matter, a court’s duty to protect the child would control. But, it emphasized that “ in light of the potential ‘chilling effects,’ psychotherapist-patient privileges should not ‘cavalierly be ignored or lightly cast aside.’ [Instead], “[t]here first must be a showing beyond ‘mere conclusory statements' that resolution of the custody issue requires revelation of the protected material.”[57]

Kinsella cited cases in both Kentucky[58] and Louisiana[59] that had taken a different approach. Those cases held that by contesting custody a party waived the physician-patient privilege, though the Louisiana case noted that a trial court had the power to seal records or take testimony in chambers.[60]

Kinsella quoted another New York case which directed the trial court to review the records to determine those parts of the records, if any, were to be disclosed.”[61] In particular, Kinsella observed that where courts in states such as Washington, Indiana, Kansas, Nebraska and Florida had ordered disclosure of treatment records, typically there was evidence of recent or continuing serious mental illness bearing on potential unfitness, though it noted that Florida courts later adopted a non-waiver rule.[62]

The Kinsella court, in dicta, suggested possible further limitations on the propriety of requiring disclosure by presenting the conclusions of a Task Force Report of the American Psychiatric Association. The Report recommended that disclosure of records was warranted only upon both a threshold showing of parental unfitness and an indication that the treatment records were likely to contain relevant evidence that could not be obtained elsewhere. That Report further observed that courts should make the following findings before ordering disclosure: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute for disclosure; (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.[63]

The bottom line in Kinsella was its clear statement that by seeking custody or visitation, a party does not place its therapeutic records “in issue,” and that taking the appropriate balancing approach was, in fact, “in the best interest of the child.” It held that only when information from independent evaluations proved to be inadequate that a court should consider compelling disclosure. Moreover, prior to releasing the records the court should conduct an in camera review and only release material that is relevant to the issues at hand.[64]

Ultimately, in Kinsella, the court remanded the matter to the trial court to reconsider the propriety of piercing the psychologist-patient privilege, particularly focusing on whether other sources of information were adequate to adjudicate the case without resorting to the husband’s therapy records. In the conclusion of its opinion, the court took pains to caution that it was only in “the most compelling circumstances should the courts permit the privilege to be pierced.”[65]

The only other custody case in which a claim of privilege was at issue and that cited Jaffee, was Laznovsky v. Laznovsky,[66]  decided by the Maryland Court of Appeals. The mother, who was a paralegal, had sought psychiatric treatment both before and after the marriage. After a number of separations, she sued the father, an attorney, for divorce, seeking sole legal custody of the children. The father also requested sole legal custody. At trial, the father sought broad discovery of the mother’s past mental health treatment records. She claimed the psychotherapist-patient privilege.[67]

The trial judge ordered the production of only the most recent records, that they be provided to him for in camera review, and that at least initially access would be denied to both parties. He also found that by virtue alone of the mother’s seeking custody, she had not put her condition in issue.[68] Nonetheless, ultimately the records were turned over to the father.

The mother was awarded custody and the father appealed. The intermediate Court of Special Appeals reversed on the privilege issue, but Maryland’s highest court, the Court of Appeals, agreed with the trial court’s and the mother’s position.[69]

The decision noted that while previously the legislature had provided for an exception to the privilege in question for child custody cases, that exception was deleted by later legislation. The court observed that the deletion clearly was not accidental: “The legislative history of [the Senate bill in question] confirms that its purpose was to ensure the confidentiality of psychiatrist-patient treatment communications and records, even in child custody cases. That legislative history permits no other reasonable inferences.”[70] The court provided a lengthy history of how the deletion came about in support of its conclusion.[71]

Looking at the case law in other states, primarily reviewing pre-Jaffee rulings, finds the jurisdictions divided. The court noted that a number of states had a statutory exception to their privilege statutes similar to the one repealed in Maryland. Case law in those jurisdictions generally allowed disclosure of the otherwise privileged information, as did some states without the child custody statutory exception.[72] The court observed that there were states that took the position that a party waives the psychiatrist-patient privilege in a child custody case where the mental state of the party “is clearly in controversy, and a proper resolution of the custody issue requires disclosure of privileged medical records.”[73]  In those states, courts sometimes nonetheless took the position that such a rule “does not result in making relevant the information contained in the file cabinets of every psychiatrist who has ever treated the litigant,” and that the admissibility of such evidence was a matter for the trial judge.[74]

The Laznovsky court proceeded to cite and discuss Kinsella, which it described as a case that “appears to have held that such privileged treatment records were discoverable in child custody cases, but then used strong language discouraging such discovery.”[75] Ultimately, Laznovsky relied on the policy decision to repeal the child custody exception. Like Kinsella, it held that the mere fact that the mental and physical health of a party is to be considered by the trial court, a party seeking a child custody award who claims to be a fit parent, does not, absent additional facts, waive the confidential psychiatrist/psychologist-patient privilege.[76] The court also had noted that a party could choose to provide the information voluntarily, or the court could order a current mental health evaluation.[77]


From a national perspective, it appears that the U.S. Supreme Court’s decision in Jaffee has had little direct effect in altering how states deal with claims of privilege in child custody cases. This probably is due in large part to two reasons. By its terms, the case only controls the admissibility of evidence in federal courts. In addition, the opinion’s language suggests that even if state courts followed its near absolutist position, the potential exceptions noted in the case itself could be applicable in custody cases. A limited number of jurisdictions do continue to hold that no privilege exists in order to protect the best interests of the child. Typically, this is done either through a simple general statement in legislation or court opinions to that effect,78 or by utilizing the theory that a party, by virtue of making a claim to custody, automatically puts his or her mental condition in issue or waives the right to claim the privilege.79 In many such cases, nonetheless, the courts have required an in camera review of the records, with the judge then determining whether, given their contents, they have adequate relevance to the issues so as to warrant disclosure.80  In some jurisdictions, there is a specific statutory exception to the privilege for child custody cases, though typically the exception applies only where the information has a clear bearing on the custody issue.81 Other cases have clearly held that seeking custody does not, at least initially, make one’s mental condition an element of a claim or defense, thereby waiving an individual’s psychiatrist-patient privilege, though it may do so as the case proceeds.82 In other jurisdictions, courts have come very close to saying that the privilege should never, or practically never, be invaded,83 again with the exception of allegations of abuse or neglect being present.84

From the viewpoint of the practicing psychologist, there needs to be a recognition that courts (and legislatures) have taken different positions at different times. Therefore, it would be wise to become acquainted with rules that exist in the jurisdiction in which the psychologist practices. Moreover, whatever the current existing positions may seem to be, they are subject to change. Even where rules protecting the privilege in these cases seem well established, it would be wise to alert patients to potential limitations. While a therapist may well make every effort to maintain confidentiality and protect any privilege that seemingly exists, disclosures regarding child abuse and neglect will be reportable. Moreover, the therapist ought not to make assurances concerning the possibility of court-ordered disclosure in custody and visitation issues.


Jesse A. Goldner, JD, is the John D. Valentine Professor of Law and Professor of Law in Psychiatry at Saint Louis University’s Schools of Law and Medicine.  He is a public member of the Board of Directors of the National Register of Health Service Providers in Psychology.

This article is copyright © 2011 by Jesse Goldner, JD. No part of this article may be reproduced without the express written permission of the author.


1Jaffe v. Redmond, 518 U.S. 1 (1996).
2This paper will uniformly use the phrase "psychotherapist-patient privilege" when referring to the privilege held by a patient or client to exclude testimony regarding communication between the mental health care provider and potential client or patient.  In different jurisdictions, the privilege may be that of physician-patient, psychiatrist-patient, psychologists-patient, social worker-client or marriage counselor-client.
3A privilege may apply in any formal legal proceeding such a trial, a deposition, or a administrative or legislative hearing where individuals may be asked to testify under oath or otherwise to provide documents or information.  In such instances, a refusal to do so could lead a court or legislative body to hold the party in contempt for refusing to make the disclosure or to authorize another to do so. Typically, an order of contempt results in placing the contemnor in jail until he or she discloses the information.  It is to be distinguished from the professional ethical or legal obligation to maintain confidentiality, the breach of which can result in a lawsuit for money damages by the patient or client against the therapist.
4Jaffee, 518 U.S. at 4.
8Id.  The Court concluded that it should.  Id. at 17-18.
9“Except as otherwise required by the Constitution of the United States or provided by an Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”
10See Jaffee, 518 U.S. at 7.
11Id. at 15.
12See, 518 U.S. at 18-19 (Scalia, J., dissenting)
13518 U.S. at 16-17.
14Jaffee at 12
15Id. at 10.
16Id. at 6.
17Id. at 10.
18Jaffee v. Redmond, 51 F.3d 1346, 1357 (7th Cir. 1995).
19Jaffee, 518 U.S. at 15.
20Id., at 18, quoting Upjohn v. U.S. 449 U.S. 383, 393 (1981
21Id. at 18.
22Id. at note 19.
23Id. at 33-34.
24Id. at 34.
25See Ankenbrandt v. Richards, 504 U.S. 689 (1992) and Barber v. Barber, 62 U.S. 582 (1858).
2625 U.S.C.  §§  1901-63 (2006).
27See text accompanying note 28 supra.
28Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334 (1976).
29For a detailed discussion of the Tarasoff doctrine and its limits, see Michael L. Perlin, Mental Disability Law: Civil and Criminal §7C-1ff (2nd ed. 1998).
30910 So.2d 1255 (Ala. 2005)
31Id. at 1257-58.
32Id. at 1259-60.
33Id. at 1261.
34Id. at 1262-63. It is worth noting that one of the dissenting opinions in the case quoted the portion of Jaffee that stressed the importance of confidentiality for successful treatment.  Id. at 1269-70.
35See, e.g., Ellison v. Ellison, 919 P.2d 1 (Okla. 1996).
36State v. Sypult, 800 S.W.2d. 402 (Ark. 1990) (a prosecutor can use information that the child abuser sought and received treatment but not any other statements made in confidence); State v. Andring, 342 N.W.2d. 128 (Minn. 1984) (cannot use privileged information beyond the child abuse report).
37State v. Andring, 342 N.W.2d 128 (Minn. 1984).
38People v. Bowman, 812 P.2d 725 (Col. Ct. App. 1991) (report and confidential communications are not privileged for purposes of child abuse reporting because purpose is to protect child and prosecute abusers); People v. Battaglia, 156 Cal. App. 3d 1058 (Cal. Ct. App. 1984) (the child abuse reporting act is not only to make child safe from criminal activity, but also to prosecute); People v. Gearhart, 560 N.Y.S. 2d 247 (1990) (the interest in encouraging the child abuser to seek treatment is subordinate to the goal of protecting the child; criminal prosecution is one means of protecting the child).
39696 A.2d 556 (N.J.1997).
40Id. at 561.
41Id. at 561-62.
42Id. at 563.
43Id. at 563-64.
44Id. at 564.
45Kinsella v. Kinsella671 A.2d 130 (N.J.Super.A.D.,1996).
46Id. at 565.
47Kinsella v. Kinsella, 696 A.2d at 565-566, quoting 8 Wigmore on Evidence §2285.
48Id. at 566.  
49See text supra at notes 24-25.
50Kinsella, 696 A.2d at 569-570.
51Id. at 570.
52Fitzgibbon v. Fitzgibbon, 484 A.2d 4 (N.J. Super. Ch. Div. 1984).
53Kinsella, 696 A.2d at 571.
54Id. at 578.
55Id. at 579.
56Id. at 579-80.
57Kinsella,696 A.2d at 580, quoting Fiumano at 384-387.
58Atwood v. Atwood, 550 S.W.2d 465 (Ky. 1976)
59Kirkley v. Kirkley, 570 So.2d 509 (La. App.1991)
60Id. at 511.  
62Id. at 580-81.
63Id. at 582-83, citing American Psychiatric Association,  Task Force Report 31, Disclosure of Psychiatric Treatment Records in Child Custody Disputes (1991).
64Kinsella 696 A.2d at 583-84.
65Id. at 584.
66Laznovsky v. Laznovsky,745 A.2d 1054 (Md.App.2001)
67Id. at 588.
68Id. at 1055-56.
69Id. at 1058.
70Id. at 1059.
71Id. at 1057-61.
72Id. at 1055-56.
73Id. at 1066.
74Id. at 1067-68.
75Id. at 1068.
76Id. at 1073.
77Id. at 1072.
78See e.g. Dawes v. Dawes, 454 So.2d 311 (La. Ct. App. 1984); Thompson v. Thompson, 624 So.2d 619 (Ala. Civ. App. 1993); Kirkley v. Kirkley 575 So.2d 509 (La. App. 5 Cir., 1991); Atwood v. Atwood550 S.W.2d 465 (Ky. 1976).
79See e.g., Owens v. Owens, 563 N.E.2d 605 (Ind. 1990); Whiteman v. Whiteman, 1999 WL 375848 (Ohio App. 12th Dist. 1995); Shepard v. Roll717 N.Y.S.2d 783 (A.D. 3rd Dept. 2000); Slaton v. Slaton, 682 So.2d 1056 (Ala. 1996).
80Gill v. Gill 2003 WL 132447 (8th Ohio App. 8th Dist. 2003); Sussman v. Sussman, 146 P.3d 597 (Haw. App. 2006); Sweet v. Sweet 2005 WL 3610481 (Ohio App. 11th Dist.).
81See, e.g. La. Code Evid. Ann. Art 510 (B)(2)(d); Mass. Gen Laws Ann. Ch 233 sec. 20(B)(e); Ala. R. Evidence 503(d) (5).
82See, e.g. Roper v. Roper336 So.2d 654 (Fla.App. 1976);  State ex rel. Husgen v. Stussie, 617 S.W.2d 414 (Mo. App. E.D. 1981).
83Cabrera v. Cabrera, 580 A.2d 1227 (Conn. App. 1990); Sussman v. Sussman, 146 P.3d 597 (Haw. App. 2006); .); State ex rel. Husgen v. Stussie, 617 S.W.2d 414 (Mo. App. E.D. 1981); Peisach v. Antuna, 539 So.2d 544 (Fla. App. 3, 1989)
84Roth v. Roth, 753 S.W.2d 590 (Mo. App., E.D. 1990).  See also Barker v. Barker, 440 P.2d 137 (Idaho 1968).