The rules of evidence can be challenging. Understanding it is a skill that must be honed and refined, which is what we try to do at the Law Offices of Nancy J. Bickford. In this blog, we will discuss two of the most important evidentiary privileges and their importance in family law cases: the physician-patient privilege and the psychotherapist-patient privilege.
Statements made from an adult to their treating physicians/psychotherapists are absolutely protected from privilege, unless the issue is tendered or waived.
In a family law case, the most common discussion of the physician-patient privilege or psychotherapist-patient privilege happens in the context of spousal support. If a party seeking spousal support wants to stipulate that their physical or mental health won’t affect their ability to work, their health will be off limits as an issue in the case. However, once that spouse argues that he or she cannot work because of a certain physical or mental health ailment, the floodgates will be completely opened as to that ailment because the issue was tendered by that spouse.
These privileges are also a big issue in child custody cases and there are two published opinions in California that discuss it: Koshman v. Superior Court and Manela v. Superior Court.
Both cases, on balance, protected the sanctity of this privilege, even though they were both child custody cases and the best interests of the children hung in the balance.
In Koshman, the Court of Appeals held that the privilege still applied all the same in child custody proceedings and held that if another party raises a medical or psychotherapy issue, merely defending oneself against those allegations would not be considered a tendering of the issue.
In Manela, the Court held that the first subpoena at issue was proper because the privilege was waived when both spouses were present at the meetings with the doctor in question. However, the Court held that the second subpoena at issue should be quashed because the other spouse was not present at the appointments and the privilege was not otherwise waived or tendered.
Does a Psychological evaluation allow the Court to order a waiver of the privilege?
On many occasions, trial courts will order a psychological evaluation in a custody case, only to follow up with an order requiring each party to sign waivers of the physician-patient privilege or the psychotherapist-patient privilege so that the evaluator can communicate with the physician/therapist. I think these orders are improper! If Koshman and Manela stand for anything, it’s that child custody proceedings simply do not change the rules regarding the psychotherapist/patient privilege. I’m not suggesting that one should oppose the waiver of the privilege in every case, but I believe one should not have to provide all their medical/psychotherapeutic history just because a psychological evaluation was ordered. Under the appropriate circumstances, one might want to ask the judge to reconsider that order. If the trial judge does not agree, one might consider filing for a stay and petition for writ review in the Court of Appeals.
Please contact us if you are considering a divorce from your spouse, a legal separation, or if you have questions regarding the application of privileges in family law. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.