
Custody Proceedings – Evidence - Confidential communications - Waiver in Custody Cases
Unless the client or patient waives it, there is a privilege against disclosure of confidential communications between an attorney and a client,[1] physician, dentist or nurse and patient, [2] clergyman and confessor, [3] psychologist and client,[4] and social worker and client.[5]
The Second Department[6] has held that by actively contesting custody, a party puts their mental and emotional condition in issue and that the psychologist-client privilege is automatically waived.
The Fourth Department[7] has held that the physician-patient, psychologist-client and social worker-client privilege is not automatically waived in a custody proceeding, "Where it is demonstrated that invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody the rule of privilege protecting such communications must yield to the dormant . . . duty of the Court to guard the welfare of its wards." However, it is not its purpose, to discourage troubled parents from seeking professional assistance from and counseling agencies or to compel a custodial parent to forego needed psychiatric or other help out of fear that confidences will later be unfairly and unnecessarily revealed through the animus act of a present or former spouse. It thus, limited its rule, stating: "There first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material”.
The Second Department subsequently adopted the limitation of the Fourth Department that before the court may find that there has been a waiver of the physician-patient privilege there first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material.” [8]
[1] Civil Practice Law and Rules §4503.
[2] Civil Practice Law and Rules §4504.
[3] Civil Practice Law and Rules §4505.
[4] Civil Practice Law and Rules §4507.
[5] Civil Practice Law and Rules §4508.
[6] Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dep't 1977).
[7] Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (4th Dept., 1978).
[8] McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) ( “It is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition (see, CPLR 4504) by actively contesting custody (see, Baecher v Baecher, 58 AD2d 821; People ex rel. Chitty v Fitzgerald, 40 Misc 2d 966). However, “[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material” (Perry v Fiumano, 61 AD2d 512, 519). Clearly, resolution of the custody issue in the instant case does not require revelation of the wife's medical records concerning her in vitro fertilization.”); Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) (‘ “[I]n a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition ... by actively contesting custody ... However, [t]here first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material” (McDonald v. McDonald, 196 A.D.2d 7, 13 [citations and internal quotation marks omitted]; see Baecher v. Baecher, 58 A.D.2d 821). Here, since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of Drs. Wilkie and Riesel regarding the defendant's mental health.”)
Unless the client or patient waives it, there is a privilege against disclosure of confidential communications between an attorney and a client,[1] physician, dentist or nurse and patient, [2] clergyman and confessor, [3] psychologist and client,[4] and social worker and client.[5]
The Second Department[6] has held that by actively contesting custody, a party puts their mental and emotional condition in issue and that the psychologist-client privilege is automatically waived.
The Fourth Department[7] has held that the physician-patient, psychologist-client and social worker-client privilege is not automatically waived in a custody proceeding, "Where it is demonstrated that invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody the rule of privilege protecting such communications must yield to the dormant . . . duty of the Court to guard the welfare of its wards." However, it is not its purpose, to discourage troubled parents from seeking professional assistance from and counseling agencies or to compel a custodial parent to forego needed psychiatric or other help out of fear that confidences will later be unfairly and unnecessarily revealed through the animus act of a present or former spouse. It thus, limited its rule, stating: "There first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material”.
The Second Department subsequently adopted the limitation of the Fourth Department that before the court may find that there has been a waiver of the physician-patient privilege there first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material.” [8]
[1] Civil Practice Law and Rules §4503.
[2] Civil Practice Law and Rules §4504.
[3] Civil Practice Law and Rules §4505.
[4] Civil Practice Law and Rules §4507.
[5] Civil Practice Law and Rules §4508.
[6] Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dep't 1977).
[7] Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (4th Dept., 1978).
[8] McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) ( “It is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition (see, CPLR 4504) by actively contesting custody (see, Baecher v Baecher, 58 AD2d 821; People ex rel. Chitty v Fitzgerald, 40 Misc 2d 966). However, “[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material” (Perry v Fiumano, 61 AD2d 512, 519). Clearly, resolution of the custody issue in the instant case does not require revelation of the wife's medical records concerning her in vitro fertilization.”); Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) (‘ “[I]n a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition ... by actively contesting custody ... However, [t]here first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material” (McDonald v. McDonald, 196 A.D.2d 7, 13 [citations and internal quotation marks omitted]; see Baecher v. Baecher, 58 A.D.2d 821). Here, since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of Drs. Wilkie and Riesel regarding the defendant's mental health.”)
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.
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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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