If the parents of a child have a legal dispute over custody and visitation rights and wish it to be resolved by a court in New York State, each parent places his or her physical and mental health in issue. A parent’s right to confidentiality is considered to be waived when that parent seeks or contests custody. Each parent is, therefore, entitled to seek disclosure of all information relevant to the other parent’s physical and mental health. This may then be used to assist in coming to an agreement regarding custody and visitation, or as evidence at trial.
If a parent refuses to permit disclosure of his or her physical and mental health records, the risk arises that the court may make an adverse inference against the withholding parent and conclude that his or her physical or mental health is not suitable for custodial or visitation rights.
A parent who wishes to withhold physical or mental health records is entitled to “move” the court for a “Protective Order” denying the other parent access to those records. The moving parent must show that the demand by the other parent is for documents and information that are irrelevant to the issues, duplicative of what was previously provided, or otherwise not properly disclosable.
The court’s primary duty is to protect the best interests of the children. It must have available to it all relevant evidence to render a decision that will fulfill that duty.
Each case is unique. If you are involved in contested custody proceedings, a custody lawyer can guide you through the various steps and assist you in understanding your rights and responsibilities.