What happens in matters regarding decision-making and/or parenting time (a/k/a custody) when one parent seeks to claim or waive a child’s physician or therapist-patient privilege, while the other parent objects?
Often a child’s doctor or therapist has relevant information that supports one parent’s custody position over the other, and the parent wishes to waive a child’s privilege to present privileged documents or testimony to the court.
Will a court allow this?
No Colorado appellate courts have addressed child’s privilege in custody matters, but have done so in dependency and neglect proceedings and criminal cases, which provide some guidance.
Generally, the patient holds the privilege, and only the patient can waive it. For a minor child, parents and others with authority to act on a child’s behalf may be able to waive the child’s privilege.
But when parents disagree about waiving the privilege or if their interests are deemed adverse to the child, then a court may disqualify parents from asserting privileges. For example, if a parent seeks to waive the privilege for strategic reasons to advance their position, then a conflict exists between the parent and child, and a waiver will likely be precluded. In custody matters “the best interest of the child” standard governs, and if the court determines the parents are not acting in the child’s best interest, the court will bar the parent from waiving the child’s privilege.
If a court does allow a waiver, this does not mean that the court automatically considers information available from the physician or therapist. Rather, the court applies a balancing test to determine the scope of the waiver and what items become evidence. The court considers numerous factors, including the best interests of the child, the parent’s due process rights and ability to respond to the information, the significance of the information and its impact on the case, whether the information may be obtained from another source, and the impact disclosure may have on parties outside of the case. L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013). After weighing these and other factors and deciding what information should be admitted, the court will only consider and rely on information subject to the waiver.
Written By Erica Rogers and Jonathan Leinheardt