Can a parent in a Tennessee custody case subpoena the other parent's therapy records and testimony from their psychologist or psychiatrist?

Subject

Opinion No. 14-55, Obtaining a Parent's Mental-Health Information in Child-Custody Cases, May 14, 2014

Plain-English summary

Senator Mae Beavers asked four questions about how a parent in a Tennessee custody case may obtain the other parent's mental-health information: to what extent can it be subpoenaed; can records be pulled in support of a Rule 35 motion; does the statutory requirement to consider mental health create a presumption of disclosure; and does the disclosure rule cover only therapy records or all health records bearing on mental health.

The AG's consolidated answer started with the privileges. Mental-health information is confidential and privileged under Tenn. Code Ann. § 24-1-207 (psychiatrist-patient privilege) and § 63-11-213 (psychologist-client privilege), with related privileges for therapists, counselors, and social workers (§§ 63-22-114, 63-23-109). One parent therefore cannot subpoena the other parent's mental-health information unless the privilege has been waived.

That privilege is statutory rather than constitutional, but it is not absolute. In child-custody cases, the comparative-fitness analysis under § 36-6-106 puts mental health on the list of factors the court must consider. The Tennessee Court of Appeals in Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn. Ct. App. 2012), addressed how to reconcile that obligation with the privilege. The court rejected the proposition that filing for custody or denying mental-instability allegations is a per se waiver. If it were, "there would be no privilege in child custody cases." But the court allowed the trial court to order in camera review of the records for the comparative-fitness analysis.

The 2013 amendment to § 36-6-106(a) (effective at the time of the opinion) authorized a court to "order an examination of a party pursuant to Rule 35" and, "if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party pursuant to § 33-3-105(3)." That cross-reference matters: § 33-3-105(3) applies only to "information that is confidential under § 33-3-103," which covers services applied for, provided under, or regulated under Title 33. Records of private therapists outside the Title 33 regime are not covered by § 33-3-105(3) and remain subject to the privilege analysis on their own.

Practical roadmap from the opinion: parent A cannot just send a subpoena to parent B's therapist. The path is (1) file the custody pleading; (2) put mental health "in controversy" with "good cause" for Rule 35 examination (Odom v. Odom); (3) ask the court to order in camera review of records for the comparative-fitness analysis under § 36-6-106 (Culbertson); (4) if the records fall within Title 33's confidentiality regime, ask the court to order disclosure under § 33-3-105(3), with the qualified protective order required by § 36-6-106(a)(5). Records outside Title 33 are governed by the privilege itself and the case-by-case analysis Culbertson approved.

The opinion notes that the 2014 amendment (effective July 1, 2014, 2014 Tenn. Pub. Acts ch. 617, § 4) restated § 36-6-106(a) to focus on "moral, physical, mental and emotional fitness," but the analytical framework was the same.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why can't a parent just subpoena therapy records?

Because the records are privileged. The psychiatrist-patient privilege (§ 24-1-207) and psychologist-client privilege (§ 63-11-213) cover communications and (per Culbertson) the records themselves. A subpoena does not pierce a statutory privilege.

Does asking for custody waive the privilege?

No. Culbertson said clearly that filing a custody petition, or denying allegations of mental instability, does not automatically waive the privilege. If it did, there would be no meaningful privilege in custody cases.

What is in camera review?

A court reviews the records privately, in chambers, without giving them to the requesting party. The court can use what it sees in the comparative-fitness analysis without exposing the records to the adversary. Culbertson allowed this as a way to honor both the privilege and the child's best interests.

What does it take to get a Rule 35 examination?

Rule 35.01 of the Tennessee Rules of Civil Procedure lets a court order a party to undergo a physical or mental exam by a licensed examiner. The moving party must show that the other party's condition is "in controversy" and that "good cause" exists (Odom v. Odom). Generic allegations are not enough; specific evidence is needed.

Does § 33-3-105(3) cover private therapy records?

Only if the therapy was part of services "applied for, provided under, or regulated under" Title 33 of the Tennessee Code, which governs the Department of Mental Health and Intellectual and Developmental Disabilities. A typical private therapist's records fall outside Title 33 and are governed by the psychiatrist-patient or psychologist-client privilege independently. State v. Fox, cited in Herman v. Herman, held § 33-3-105 inapplicable where the patient was not a "service recipient" in the care or custody of the state.

What is a qualified protective order?

§ 36-6-106(a)(5) requires that any disclosure order under § 33-3-105(3) include a qualified protective order limiting dissemination of the records to the litigation at hand and requiring their return or destruction at the proceedings' conclusion. The protective-order requirement is meant to prevent disclosed records from being reused or recirculated.

What about general health records that might reflect mental health?

The opinion does not address that question directly. Health records held by primary-care providers can contain references to mental-health treatment or medications. Those records are subject to general HIPAA privacy rules and Tennessee health-information privacy law. They are not within the statutory psychiatrist-patient or psychologist-client privilege as such, but court orders for disclosure should still go through the same in camera process for any mental-health-relevant content.

Background and statutory framework

Tennessee's psychotherapist-patient privilege is statutory: § 24-1-207 (psychiatrist), § 63-11-213 (psychologist), § 63-22-114 (therapist/counselor), § 63-23-109 (social worker). The privileges protect the therapeutic relationship by ensuring patients can speak candidly without later fear of disclosure. They are subject to waiver and to specific statutory exceptions but otherwise apply across civil and criminal proceedings.

The child-custody factor statute (§ 36-6-106) is the access point for mental-health information in family-law cases. The 2013 amendment codified the in camera review and Rule 35 procedures as the proper channels, with § 33-3-105(3) as a specific route for Title 33-regulated information and a mandatory qualified protective order. Culbertson articulated the balance: the privilege is real, but the court has tools to access the information that the comparative-fitness analysis requires.

The 2014 amendment to § 36-6-106(a) (effective July 1, 2014) reorganized the custody factors and explicitly listed Rule 35 examinations and § 33-3-105(3) disclosure in the new (a)(5) on parental fitness. The AG noted the analytical framework was unchanged.

Citations

• Tenn. Code Ann. § 24-1-207 (psychiatrist-patient privilege)
• Tenn. Code Ann. § 33-1-101(23) (definition of "service recipient")
• Tenn. Code Ann. § 33-3-103 (confidentiality of Title 33 information)
• Tenn. Code Ann. § 33-3-105(3) (court-ordered disclosure of confidential mental-health information)
• Tenn. Code Ann. § 36-6-106 (custody-determination factors)
• Tenn. Code Ann. § 36-6-106(a)(5) (mental and physical health of parents; Rule 35 examinations; qualified protective order)
• Tenn. Code Ann. § 63-11-213 (psychologist-client privilege)
• Tenn. Code Ann. § 63-22-114 (therapist/counselor-client privilege)
• Tenn. Code Ann. § 63-23-109 (social worker-client privilege)
• Tenn. R. Civ. P. 35.01 (court-ordered physical or mental examination of party)
• 2014 Tenn. Pub. Acts, ch. 617, § 4 (2014 amendment effective July 1, 2014)
• Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn. Ct. App. 2012) (Tennessee Court of Appeals; psychotherapist-patient privilege in custody; in camera review)
• Herman v. Herman, No. M2012-00395-COA-R10-CV, 2012 WL 1655717 (Tenn. Ct. App. May 9, 2012) (Tennessee Court of Appeals; § 33-3-105 inapplicable where party not Title 33 service recipient)
• Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496 (Tenn. 2010) (Tennessee Supreme Court; civil discovery limited to relevant non-privileged information)
• Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 1543476 (Tenn. Ct. App. Dec. 5, 2001) (Tennessee Court of Appeals; Rule 35 in controversy and good cause)
• State v. Fox, 733 S.W.2d 116 (Tenn. Crim. App. 1987) (Tennessee Court of Criminal Appeals; § 33-3-105 reach)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-055.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 14, 2014
Opinion No. 14-55
Obtaining a Parent's Mental-Health Information in Child-Custody Cases

QUESTIONS

1. To what extent may a parent subpoena or otherwise obtain the mental-health records of another parent or the testimony of treating mental-health professionals for use in child-custody proceedings?

2. Is a parent who wishes to introduce evidence of the mental-health status or changes of another parent able to obtain those records by subpoena or otherwise in order to support a motion under Tenn. Code Ann. § 36-6-106(a)(5), when asking the court for a Tenn. R. Civ. P. 35.01 examination of the mental or emotional health of another parent?

3. Under Tenn. Code Ann. § 36-6-106(a)(5), does the mandate that a court consider the mental health of a parent in child-custody matters create any presumption in favor of providing full disclosure of a parent's mental-health treatment, including counseling records?

4. Under the statutory language of Tenn. Code Ann. § 36-6-106(a)(5), is the disclosure of health records limited to records of mental-health professionals or would it include all health records (at least to the extent that such records reasonably may contain information relevant to a parent's mental health)?

OPINIONS

A person's mental-health information is confidential and privileged under Tenn. Code Ann. §§ 24-1-207 (psychiatrist-patient privilege) and 63-11-213 (psychologist-client privilege), and thus in a child-custody proceeding, one parent may not obtain by subpoena the mental-health information of another parent, unless the privilege has been waived. Where a parent's mental health is at issue in a child-custody proceeding, a court may order in camera review of the parent's mental-health records in order to conduct the comparative-fitness analysis required by Tenn. Code Ann. § 36-6-106. And "if necessary for the conduct of the proceedings," a court may order disclosure of "confidential mental health information" of a parent pursuant to Tenn. Code Ann. §§ 36-6-106(a)(5) and 33-3-105(3), i.e., mental-health information pertaining to services applied for, provided under, or regulated under Title 33 of the Tennessee Code.

ANALYSIS

Tenn. Code Ann § 36-6-106 provides a list of factors to be considered by a court, as applicable, in making custody determinations in suits for annulment, divorce, separate maintenance, or any other proceeding requiring the court to make a custody determination regarding a minor child. Id. § 36-6-106(a). That list includes the mental and physical health of the parents or caregivers. Id. § 36-6-106(a)(5).

A person's mental-health information, however, is confidential and privileged, pursuant to Tenn. Code Ann. §§ 24-1-207 (psychiatrist-patient privilege) and 63-11-213 (psychologist-client privilege). See also Tenn. Code Ann. § 63-22-114 (therapist/counselor-client privilege); id. § 63-23-109 (social worker-client privilege). See Culbertson v. Culbertson, 393 S.W.3d 678, 683 (Tenn. Ct. App. 2012) ("Tennessee law recognizes a privilege against compelled disclosure of confidential communications between a psychologist and client."); Herman v. Herman, No. M2012-00395-COA-R10-CV, 2012 WL 1655717, at *2 (Tenn. Ct. App. May 9, 2012) ("little doubt" that mental-health records sought in divorce proceeding were confidential). Although a typical civil litigant is entitled to discovery only of relevant, non-privileged information, Culbertson, 393 S.W.3d at 683 (citing Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 504 (Tenn. 2010)), a statutory privilege is not absolute. In child-custody cases, "the paramount consideration is the best interest of the child," and a child's best interests must be determined in light of the comparative fitness of the parents. Id. at 685.

Nevertheless, a parent who seeks custody does not automatically waive his or her claim to the confidentiality of mental-health information, nor does a parent who denies allegations of mental instability. Id. at 686. "If this were the law in Tennessee, there would be no [such] privilege in child custody cases; a party seeking privileged mental health records could obtain them simply by alleging the mental instability of his or her adversary." Id. (emphasis added). In other words, the mere fact that a parent's mental health may be at issue in a child-custody proceeding does not entitle the other parent to obtain his or her mental-health information.

In Culbertson, therefore, the Court of Appeals held that the trial court had erred in ordering disclosure of a father's psychological records without properly considering the application of the psychologist-client privilege or whether the privilege had been waived. Mindful of the trial court's concerns for the best interests of the children, however, the court ordered disclosure of the records to the trial court for in camera review "for the purpose of conducting the comparative fitness analysis" required by Tenn. Code Ann. § 36-6-106(a). Culbertson, 393 S.W.3d at 687. This decision supports the proposition that where a parent's mental health is at issue in a child-custody proceeding, a trial court may order disclosure of the parent's mental-health information at least for in camera review.

In 2013, the legislature amended § 36-6-106(a) relative to a court's consideration in child-custody proceedings of the mental and physical health of a parent or caregiver.

The court may, when it deems appropriate, order an examination of a party pursuant to Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party pursuant to § 33-3-105(3). The court order required by § 33-3-105(3) shall contain a qualified protective order that, at a minimum, expressly limits the dissemination of confidential protected mental health information for the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings.

Tenn. Code Ann. § 36-6-106(a)(5). Rule 35 of the Rules of Civil Procedure allows a court to order a party to submit to a physical or mental examination by a licensed or certified examiner. Tenn. R. Civ. P. 35.01. In order to invoke Rule 35 successfully, a party must establish that another party's mental or physical condition is "in controversy" and that "good cause" exists for the physical or mental examination. Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 1543476, at *5 (Tenn. Ct. App. Dec. 5, 2001).

Tenn. Code Ann. § 33-3-105(3) similarly provides that confidential mental-health information may be disclosed without consent "[a]s a court orders, after a hearing, upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make the disclosure would be contrary to public interest or to the detriment of a party to the proceedings." This statute, however, which is part of the statutory scheme setting forth the powers, duties, policies, and work of the Tennessee Departments of Mental Health and Intellectual and Developmental Disabilities, applies only to "[i]nformation that is confidential under § 33-3-103." Tenn. Code Ann. § 33-3-103 provides:

All applications, certificates, records, reports, legal documents, and pleadings made and all information provided or received in connection with services applied for, provided under, or regulated under this title and directly or indirectly identifying a service recipient or former service recipient shall be kept confidential and shall not be disclosed by any person except in compliance with this part.

(emphasis added). A "service recipient" is "a person who is receiving service, has applied for service, or for whom someone has applied for or proposed service because the person has mental illness, serious emotional disturbance, or a developmental disability." Tenn. Code Ann. § 33-1-101(23). Tenn. Code Ann. § 33-3-105(3) thus provides for the court-ordered disclosure of confidential mental-health information pertaining only to services applied for, provided under, or regulated under Title 33. See Herman, 2012 WL 1655717, at 2 (citing State v. Fox, 733 S.W.2d 116, 118 n.1 (Tenn. Crim. App. 1987)) (concluding that § 33-3-105 did not apply to father's disclosure request because mother was not a mentally ill or intellectually disabled person "in the care and custody of the State of Tennessee").

The statute was recently amended again. Effective July 1, 2014, § 36-6-106(a) will direct a court making a custody determination to consider inter alia:

The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). . . .

2014 Tenn. Pub. Acts, ch. 617, § 4. The analysis above, however, would be the same under this amended version of the statute.

State v. Fox, cited by the Court of Appeals in Herman, was decided in 1987. In 2000, Title 33 of the Tennessee Code was substantially revised, see 2000 Tenn. Pub. Acts, ch. 947, § 1, and one result of that revision is that the confidentiality provision of § 33-3-103 now extends to information pertaining to services "regulated under [Title 33]."

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

MARY BYRD FERRARA
Assistant Attorney General

Requested by:
The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243