Divorce Florida Style

Q:  For the last eight years of my marriage, I have been regularly seeing a psychologist.  I started shortly after my mother’s death in a car accident, felt it helpful, and never stopped going. 

My husband and I have had a tumultuous marriage over the last fifteen years, and are now in divorce court.  We are fighting over everything, including custody and control of our two boys, now eleven and thirteen. He has accused me of having an affair, not true, and has had his attorney file a motion with the judge to get copies of my psychological records.

He says that he should have the boys most of the time because they are so involved in his favorite sport, golf.  He thinks he can make them into pro golfers.  He has asked the judge in the case to let them testify.  He believes that they will say that they want to live with him.  I do not know what they would say.

Will he be able to get into my psychological records?  While there is no information in those records about any affair, there have been several other discussions between myself and my therapist, which might sound bad for me in court, especially my observations about my husband and about one of the boys. 

Will the boys have a choice about their custody; will they be allowed to testify?

A:  Based upon what you have reported it would be error for the judge to order you to waive you therapist patient privilege, and force you to turn over your psychological records.  In order for there to be a legal basis for such an order there has to have been a recent and relevant “calamitous event” to put your present emotional condition at issue, and justify the intrusion.

Past case law indicates that event’s such as a “Baker Act” commitment, for having been determined a threat to yourself or others, including a suicide attempt, or other serious acting out would be required.

The mere fact that the custody of children is at issue, itself, does not make your mental state or your husband’s mental state “at issue”, and require the invasion of mental health records.  The therapist patient privilege covers discussions with a psychologist, psychiatrist, or less credentialed mental health providers, such as licensed mental health counselors.

While most judges will not allow your children to testify, directly, in court, your children’s wishes can be taken into consideration if the judge appoints a guardian ad litum, or requires a custody evaluation or a home study.  During such investigations, the children will have a chance to talk to professionals about you and your husband, and their thoughts may get before the judge, through the testimony of the appointed experts.