Can a parent compel the disclosure of a child’s therapy records in a parenting dispute?

Generally, a parent may not compel the disclosure of a child’s therapy records in the context of a parenting dispute. The N.H. Supreme Court addressed this issue in the 2005 case In the Matter of Berg and Berg which remains good law today.  In Berg, the father filed a contempt motion against the mother, asserting that she was interfering with his parenting time. Three of the Berg children were in counseling at the time. The father sought the release of the therapist’s records for his inspection, claiming that the records would provide evidence of the mother’s alleged interference with his parenting time.

Although the trial court held that the father’s rights to his children’s therapy records overrode any privacy rights that the children may have, the N.H. Supreme Court reversed and held that the trial court must first determine whether it is in the best interest of the child to have confidential and privileged therapy records released, and that a child has a therapist-client privilege. The Court explained that “when custody of the child becomes the subject of a bitter contest between mother and father, the personal interests of the contestants in almost all cases obliterate that which is in the best interest of the child.” The Court continued that “[a]llowing parents unfettered access to their children’s therapy records under all circumstances may inhibit the child from seeking or succeeding in treatment, or even worse, result in substantial emotional harm to the child from a forced disclosure.” In other words, the Court found it imperative that the child feel that he or she may speak freely with his or her therapist without risk of a parent finding out what was said: “[t]here is a serious risk that permitting parents unconditional access to the therapy records of their children could have a chilling effect on the therapist-client relationship, thus denying the children access to productive and effective therapeutic treatment.”

Neither parent has the exclusive right to assert or waive the child’s psychologist patient privilege in a contested parenting case. Only the trial court can decide whether assertion or waiver of a child’s privilege is in the child’s best interests in that particular case. Even the attempted assertion or waiver of the child’s privilege by the child, a parent or a guardian ad litem will not be determinative. The court will engage in a case by case analysis to determine whether it is in the best interest of the child to disclose the child’s therapy or psychology records.


About the Author: Judith A. Fairclough


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