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The Maryland Court of Appeals addressed mental health records in custody cases in 2000 in Laznovsky v. Laznovsky.  In that case, the Court of Appeals found that the psychiatrist/psychologist-patient privilege was not waived by virtue of seeking sole legal custody and claiming to be a fit parent.  The path to that final decision was convoluted as that was the holding of the trial court but was reversed by the Court of Special Appeals only to be reversed again by the Court of Appeals.

The case involved to parties and a rather acrimonious proceeding. Both parties sought sole legal custody of the children.  The father sought to enter the psychological records of the mother into evidence. A motion to compel the discovery of those records was submitted and was denied, in part. The father then subpoenaed those records.  The Court ordered the records produced under seal for the Court’s inspection. The Court then found that the mother had not waived the psychiatrist/psychologist-patient privilege by attempting to obtain sole custody of the children.

At the conclusion of the merits hearing, the Court awarded sole legal custody, “primarily because both of the parties testified that they are unable to communicate.”  The psychological records were not admitted into evidence.  The father appealed to the Court of Special Appeals.

The appeal focused on whether the privilege was waived.  The father contended that by claiming to be a fit and proper person to have sole legal custody of the children, “had placed her mental condition at issue and thus had waived the psychiatrist/patient privilege . . . .”

The Court analyzed the legislative history.  It found that there was a child-custody exception to the privilege in custody cases until 1977.  At that point, that exceptions was specifically repealed.  Indeed, the repeal of the exception was an essential element and the only purpose of the bill repealing the exception.

The Court cited the availability of court-appointed experts as an alternative to mental health records. Courts have appointed independent experts to act on the Court’s behalf and come to evaluations regarding custody.  The Court stated that “[o]nly when the court perceives, after consideration of all the evidence, that the information gained from independent experts is inadequate, should the court consider piercing the psychologist-patient privilege to compel disclosure of prior treatment records to the court and the parties.”

The takeaway from this case is that, without more, claiming to be a fit parent does not waive the psychiatric-psychologist privilege.  As such, requests for mental health records can be vigorously challenged.