J. Gregory Hatcher | Family Law Attorney
It is true that children are almost always the ones who suffer the most through their parents’ separation and divorce. In many situations a child is the most unbiased witness as to events which took place in the home before the separation. However, no parent likes the idea of placing their child in the witness stand or bringing their child to family court to speak to a judge. Most family law attorneys and judges are not fond of the idea of a minor child testifying. One way to provide the Court with a better understanding of the child’s desires as to which parent has custody is to review the notes compiled by the child’s therapist. The child may already be in therapy for any number of reasons prior to the parties’ separating or, perhaps the child began therapy following the separation in order to provide the child with an outlet to address his or her feelings. Either way, the issue of obtaining the therapist’s notes comes up on a regular basis in family court.
A common misconception is that a parent may simply contact the therapist for the records, sign a release, and pick them up. Although many therapists follow this procedure, there are some therapists who from the beginning clarify with the parents that they will not surrender their notes without an order from a judge. Many parents simply gloss over the fine print of any contract they sign when meeting a therapist because their primary concern is to seek treatment for their child. Even if such a contract does not exist, a therapist may take the position that he or she would be violating the trust of the minor child if the notes were handed over to the parents or a third party.
Often a parent is required to send a subpoena to the therapist to obtain the records. A subpoena can only be used if there is a viable lawsuit which is ongoing and involving the person whose therapy notes are in question. Even with a properly executed and served subpoena to the therapist, the therapist may object and a hearing may be required to get the notes. The hearing is one in which the party seeking the records is asking the court to compel the therapist to provide the notes.
In some situations, the therapist simply wants an order requiring him or her to hand over the records as a means of protecting against any liability in the future. As such, the hearings are a mere formality and the protection of the order is really all that is solved. In other situations, a therapist vehemently denies that the therapy records should be handed over or viewed. Care providers such as therapists have their own internal rules and regulations and code of ethics which are helpful and instructive in these situations. Further, the use of applicable HIPAA and other statutory regulations can be instrumental in convincing a court to have the documents produced.
Finally, a court has wide latitude in considering the needs of all parties and the child to determine what is in the best interest of the minor child. The judge has the ability to require the therapy notes to be delivered to the court under seal and then inspected by a third party, such as another judge not involved in the case, to determine whether the notes would be relevant to the proceedings. In this scenario the judge assigned to the actual case involving the minor child will not be prejudiced by reviewing the documents and making those decisions for himself.
Greg Hatcher is a highly experienced family court attorney in Charlotte, NC. He has been named to the North Carolina Super Lawyers list since 2010 and also recognized among the state’s “Legal Elite” by Business North Carolina magazine. As a Board Certified Specialist in family law, Mr. Hatcher has represented clients in child custody, divorce, alimony, child support, alienation of affection, and other family law related cases for more than 17 years.