Facts: When the parties were divorced, Mother was named the primary residential parent. After the divorce, Mother experienced mental health problems that resulted in several extended hospitalizations. During these hospitalizations, Child stay with Father. Father filed a petition to change custody based upon Mother’s alleged deteriorating mental health. He claimed she had not been compliant with her medication or treatment. Father sought discovery of Mother’s mental health records, to which Mother objected. The trial court ordered the records to be produced for in camera inspection. Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

There is no question that Mother’s mental health records are privileged and confidential. Specifically, Tennessee Code Annotated § 24-1-207 (psychiatrist-patient privilege) and Tennessee Code Annotated § 63-11-213 (psychologist/psychological examiner-client privilege) bar their disclosure.

Father argued the records must be produced so the trial court could fulfill its obligation to consider the mental health of the parents as required by Tennessee Code Annotated § 36-6-106, which lists the various factors the court must consider in determining the child’s best interest in the course of a custody proceeding.

The Court recognized the privilege and told Father how to proceed:

Courts should and do consider [the mental health of the parents or caregivers] when one or both parties provide evidence relating to the mental health of the parents or caregivers. It is not, however, a license to disregard statutory privileges from disclosure.

Father indicates that he has not sought an order for a mental health examination of Mother under Tenn. R. Civ. P. 35.01 because it “would likely be much more intrusive to the Mother, may not determine all the significant mental health concerns of the Mother, and would require the mother’s cooperation and verbal responses (which she would refuse).” Reviewing Mother’s recent records would, he argues, “be quicker, more insightful and less of a burden on the Mother and Father,” as well as less expensive. While, at least in Father’s view, disclosure of Mother’s records is the simplest and best way to resolve his evidentiary needs, Mother has the right not to waive her statutory privileges. Given this state of affairs, Father must decide whether he wants to seek a Rule 35.01 mental health examination of Mother. . . . In order to invoke Rule 35.01, Father must establish that Mother’s mental health is “in controversy,” and that “good cause” exists for the examination.

Accordingly, the trial court’s order to produce Mother’s mental health records was reversed.

Herman v. Herman (Tennessee Court of Appeals, Middle Section, May 9, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.