When child custody is at issue, or during a guardianship or defacto case, the physical and mental health of the parties is often of the upmost importance. Understanding the party’s ability to properly care for a child and act in the best interests of a child is an important determination in family law.
But, how does a party determine the physical and mental health of another? Often this is accomplished through the discovery process, and if specific concerns are alleged, the discovery can be specific to those concerns1.
There are several examples of potential concerns that may prompt discovery and evidence of physical and mental health. For example, there may be a concern that one parent is abusing drugs, or a grandparent who is a child’s guardian is in poor health, to the point they are unable to properly care for the child.
Due to the strict confidentiality of medical and mental health records, including HIPAA and other protections, these records are often only available after a release has been signed. Once a release is signed by the patient, the records may be provided to other parties. However, if the records are filed with the Court or used as an exhibit, these records are filed as confidential2. Some providers require a Court order to release records if a release is not signed by the patient.
There are times when records are not presently available. For example, in the example above where a party suspects another of abusing drugs, if that party has not been in any treatment or taken a drug screen, there may be no evidence. At that point, the other party might file a motion with the Court requesting that a drug screen be taken. This is filed under Indiana Trial Rule 35 as a physical examination, and may be ordered by the Court.
Examinations under Trial Rule 35 can also be ordered for the child in a custody or related matter. For example, if a child is in need of counseling to address an issue, the Court may order that the child be evaluated by a psychologist or other mental health professional who could then recommend counseling sessions if necessary.
Information regarding mental and physical health of parties and children is extremely sensitive information, and is confidential pursuant to a number of safeguard laws, including HIPAA and Indiana Administrative Rule 9. Knowing the boundaries of information requests and the appropriate means of handling this sensitive information can help parties in custody and related matters act in the best interests of the child while not mishandling confidential information.
We hope that this blog post has been helpful in exploring means of information gathering specific to physical and mental health. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.