Q: I have been battling my ex-husband in divorce court for a decade. We battled over everything from time with the children to our drapes. He hid assets, destroyed assets, and planted drugs in my car. We fought over our friends, who called the debacle the “War on the Shore”.
The children, a boy and a girl, now 11 and 13 years old, are his latest target. He wants to become the residential parent, a battle he has lost in court three times before. Now he’s asking for full custody, excluding me, except for visitation supervised at a psychologist’s office.
Micheal H. Gora
To do this he is trying to get into my psychologist’s records from two years before our divorce and ever since. I thought those records were confidential. He now claims, for the first time, that I’m an alcoholic, sex offending (with my daughter) lesbian. He makes this stuff up as he goes along.
What are the chances of his getting into my psych records, current or ancient? While I’m in no way guilty of his accusations, I have had therapeutic dialogue with my psychologist, which is extremely private that I would not want him to have. He would probably give it to the children at some point, which might be damaging to them and to my relationship with them.
A: You raise two legal issues. First, whether or not your former husband will be able to get into psychological records at all, and second, whether he can get into such records from dates before your divorce.
Generally, records of your communications to psychologists or other mental health workers are confidential under Florida statutes. Before the records may be obtained by subpoena, your ex must notify you and your lawyer that he would like to do so. You would then object, and there would be an evidentiary hearing after which the judge would decide if there was cause to overcome the confidentiality.
The basis for such a ruling must be that your mental health has become an important issue in the case as the result of some overt, serious act, such as an attempted suicide, or involuntary commitment to a mental institution which, perhaps started with being seized under what we call in Florida a Baker Act commitment.
The fact that your former husband has made an issue out of residential parenting is, by itself, insufficient to get into your records without the present evidence which appears to involve a serious mental problem, which could affect your children.
Your former husband’s request for your record before the divorce judgment runs into another obstacle called res adjudicata.
When a final judgment has been entered, both parties to the case are assumed to have litigated all issues between them that were, or could have been, litigated in the divorce. Each has had the chance to ask the court for all of the existing records, including the psychological records.
Usually, absent a prior fraudulent failure to deliver evidence lawfully asked for, the judge will deny any efforts to develop evidence regarding facts, which took place before the final judgment.
Your attorney should be able to protect your records from these requests to investigate your psych records.
Michael H. Gora has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached at 561-477-7800 and mhgora@sbwlawfirm.com.