Custody Proceedings - Evidence - Child Permitted to Assert Psychologist - Patient Privilege
In a custody proceeding is proper for the court to refuse to permit a parent to call the child's therapist as a witness, where the attorney for the child does not consent[1] to the disclosure of confidential communications between the child and his therapist [2] and the proceeding is not a child protective proceeding pursuant to Family Court Act article 10.
In the context of a child custody proceeding, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel until the child, through his attorney for the child, has an opportunity to assert her statutory privilege protecting such disclosure. Records obtained without a judicial subpoena duces tecum or other court order, is information improperly or irregularly obtained. The notes, records and communications are subject to the patient/psychotherapist privilege embodied in CPLR 4504, "confidences to a psychiatrist”, and CPLR 4507, "confidences to a psychologist”.[3]
[1] Matter of Ascolillo v Ascolillo, 43 A.D.3d 1160844 N.Y.S.2d 339 ( 2 Dept. 2007); Forrestel v Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483 (4th Dept.,2015)
[2] citing Matter of Billings v. Billings, 309 A.D.2d 1194
[3] In Liberatore v. Liberatore, 37 Misc. 3d 1034, 955 N.Y.S.2d 762 (Sup. Ct., 2012), during the trial of this custody matter the court made a determination and order from the bench to confiscate the notes and records of the child's psychologist and clinical psychologist, obtained by the father via a HIPAA release only without the aid of the court for use in the custody battle. It observed that in the context of a child custody proceeding, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel (citing Perry v. Fiumano, 61 A.D.2d 512, 517 (4th Dept.1978), until the child, through his attorney for the child, has an opportunity to assert her statutory privilege protecting such disclosure. Consequently, the court held that the records obtained without a judicial subpoena duces tecum or other court order, was information improperly or irregularly obtained, and they had to be returned to the therapist or otherwise destroyed. The Supreme Court held that the notes, records and communications were subject to the patient/psychotherapist privilege embodied in CPLR 4504, "confidences to a psychiatrist”, and CPLR 4507, "confidences to a psychologist”. The Court rejected Plaintiffs argument that the attorney for the child was on notice that he intended to obtain the therapists' records and that it was his obligation to positively assert the patient/psychotherapist on behalf of his client and did not do so. Supreme Court held that a party seeking to obtain privileged material as it pertains to a minor child is obliged to utilize a judicial process sufficient to give notice to the court and the treatment provider via motion or an application for a judicial subpoena duces tecum on notice to the parties and treatment provider.
In a custody proceeding is proper for the court to refuse to permit a parent to call the child's therapist as a witness, where the attorney for the child does not consent[1] to the disclosure of confidential communications between the child and his therapist [2] and the proceeding is not a child protective proceeding pursuant to Family Court Act article 10.
In the context of a child custody proceeding, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel until the child, through his attorney for the child, has an opportunity to assert her statutory privilege protecting such disclosure. Records obtained without a judicial subpoena duces tecum or other court order, is information improperly or irregularly obtained. The notes, records and communications are subject to the patient/psychotherapist privilege embodied in CPLR 4504, "confidences to a psychiatrist”, and CPLR 4507, "confidences to a psychologist”.[3]
[1] Matter of Ascolillo v Ascolillo, 43 A.D.3d 1160844 N.Y.S.2d 339 ( 2 Dept. 2007); Forrestel v Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483 (4th Dept.,2015)
[2] citing Matter of Billings v. Billings, 309 A.D.2d 1194
[3] In Liberatore v. Liberatore, 37 Misc. 3d 1034, 955 N.Y.S.2d 762 (Sup. Ct., 2012), during the trial of this custody matter the court made a determination and order from the bench to confiscate the notes and records of the child's psychologist and clinical psychologist, obtained by the father via a HIPAA release only without the aid of the court for use in the custody battle. It observed that in the context of a child custody proceeding, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel (citing Perry v. Fiumano, 61 A.D.2d 512, 517 (4th Dept.1978), until the child, through his attorney for the child, has an opportunity to assert her statutory privilege protecting such disclosure. Consequently, the court held that the records obtained without a judicial subpoena duces tecum or other court order, was information improperly or irregularly obtained, and they had to be returned to the therapist or otherwise destroyed. The Supreme Court held that the notes, records and communications were subject to the patient/psychotherapist privilege embodied in CPLR 4504, "confidences to a psychiatrist”, and CPLR 4507, "confidences to a psychologist”. The Court rejected Plaintiffs argument that the attorney for the child was on notice that he intended to obtain the therapists' records and that it was his obligation to positively assert the patient/psychotherapist on behalf of his client and did not do so. Supreme Court held that a party seeking to obtain privileged material as it pertains to a minor child is obliged to utilize a judicial process sufficient to give notice to the court and the treatment provider via motion or an application for a judicial subpoena duces tecum on notice to the parties and treatment provider.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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