Obtaining Children’s Medical Records To Use In Custody Litigation

 father's rights lawyers           Supreme Court Justice, Kenneth Fisher, sitting in Monroe County, New York, recently dealt with issues concerning the obtaining of mental health records for litigation purposes by use of a parental release under the Federal Health Insurance Portability and Accountability Act (HIPAA).  The court held a HIPAA release form was inappropriate to obtain medical records for children. The court went further and found that only a court order after disclosure and presentation to a judge would be appropriate to obtain children’s mental health records related to custody litigation.

            Justice Fisher ordered the father, who had obtained the mental health records pursuant to a HIPAA release form, to return the records of his daughter to the psychologists and psychiatrists who had given them to him.  The psychiatrist had provided the father with medical records because he believed “parents have an unfettered right of disclosure.”

 Privileged Records

            In this case, the court held “a party seeking to obtain privileged material as it pertains to a minor child is obligated to utilize a judicial process sufficient to give notice to the court and the treatment provider by a motion or application for a judicial subpoena deuces tecum on notice to the parties and the treatment provider.”  The court went on to say it had a duty in custody matters to deal with issues concerning the children’s best interest. The court stated that in “the context of a child custody proceeding within a matrimonial action communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient for the core opportunity to exercise its obligations to determine the best interests of the child and its role as parents patriae in determining the custody of a minor child.”


            HIPAA forms are insufficient to obtain medical records in contested custody proceedings. An application has to be made to the court.

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About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.