Summary
In a child custody proceeding in Westchester County Supreme Court, the defendant moved to compel the plaintiff's mental health providers to produce psychotherapy notes, arguing they were necessary for trial preparation and rebuttal of a forensic evaluator's report. The plaintiff opposed, citing HIPAA protections and arguing the existing medical records were sufficient, while seeking protective orders if disclosure were ordered. The court denied the motion to compel, finding the defendant failed to demonstrate that specific information was unavailable from other sources, but granted the cross-motion to establish protective restrictions should such notes ever be disclosed in the future.
Topics
Practice areas
Questions Presented
- Whether a parent's psychotherapy notes may ever be disclosed in a New York custody proceeding.
- What procedural and privacy protections must apply if disclosure of psychotherapy notes is ordered.
- Whether defendant demonstrated that disclosure of plaintiff's psychotherapy notes was necessary because specific information unavailable from other sources was required for the custody determination.
Holdings
- Psychotherapy notes of a parent may be subject to disclosure in New York custody litigation when the party seeking disclosure demonstrates that information from evaluations and other sources is inadequate and that resolution of the custody issue requires revelation of the protected material.
- If disclosure of psychotherapy notes is ordered, the court must protect the patient's privacy through appropriate limits on the time period covered, a protective order restricting disclosure beyond the litigation, and in camera review.
- Defendant failed to meet the burden for compelling plaintiff's psychotherapy notes because defendant did not identify specific information unavailable from other sources, and substantial mental-health records had already been disclosed.
Key quotations
“This Court agrees with the determination made in Jonathan C that in the context of a custody litigation within the State of New York, psychotherapy notes of a parent may be subject to disclosure.” ([*3])
“Nonetheless, the Court emphasized that in light of possible "chilling effects" therapist-patient privilege should not "cavalierly be ignored or lightly cast aside."” ([*3])
“Here, the Court determines that Defendant has failed to meet this burden as there was no showing that specific information was sought by Defendant that was not readily available from other sources including the substantial amount of mental health records of Plaintiff that were already disclosed.” ([*3])
Factual background
The parties' matrimonial action involves two minor children, and custody, visitation, domestic violence, substance abuse, mental illness, and decision-making were among the issues assigned to a court-appointed forensic evaluator. Plaintiff had received mental-health treatment from two providers, and the providers produced substantial mental-health records but withheld psychotherapy notes under the HIPAA authorization carve-out. Defendant sought the notes to prepare for the custody trial, asserting that plaintiff's mental health and parental fitness were at issue; the court found no showing that specific information unavailable from the already disclosed records or other sources was needed.
Procedural history
The parties commenced a matrimonial action in 2022 involving two minor children, and custody became an issue at the preliminary conference. The court appointed an attorney for the children and a neutral forensic evaluator, and defendant later served subpoenas for plaintiff's mental-health records. After non-psychotherapy mental-health records were produced but psychotherapy notes were withheld, defendant filed Motion Sequence No. 5 to compel production; plaintiff filed Motion Sequence No. 6 opposing the request and seeking protective relief. The court denied Motion Sequence No. 5 and granted Motion Sequence No. 6 to the extent it denied Motion Sequence No. 5.