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Kevin O'Flaherty

In this article, we explain the disclosure of medical records and mental health records in Illinois child custody cases.  We answer the questions: “Why are medical and mental health records important in child custody cases?” and “what happens if the patient or therapist refuses to release medical records or mental health records in Illinois child custody cases?”   We also explain how to obtain medical records in Illinois child custody cases and how to obtain mental health records in Illinois child custody cases.  

Why are medical and mental health records requested in child custody cases? 

In any child custody case, the court endeavors to reach a decision in "the best interests of the child.”  Along with other factors, parental health is important when deciding the home in which to place the child.  Any illness has to be carefully examined to determine the impact it may have on caring for a child full-time and the stability the parent can provide in their home.  In particular, mental health issues play a significant role in custody decisions.

For some foundational information about Illinois child custody laws, check out: Illinois Parenting Laws 2019.  For more on the written discovery process generally, check out: The Written Discovery Phase of Litigation Explained.

How to obtain medical records in child custody cases in Illinois

In regards to child custody cases, Illinois statute allows for the disclosure of information “with the expressed consent of the patient (client) and health care practitioner.”  The term “health care practitioner” refers to  any health care practitioner, including a physician, dentist, podiatrist, advanced practice nurse, physician assistant, clinical psychologist, or clinical social worker.

With regards to medical records, a release will be prepared and provided by the attorney for the client to sign.  Upon receipt of this release, the attorney will then forward this to the named health care practitioner with a request to copy and examine the patient’s health records.

How to obtain mental health records in Illinois child custody cases:

Unlike physical health records, psychological or mental health records cannot be automatically retrieved from a therapist despite obtaining consent from the client.  The term “therapist” refers  to a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist.

In matters relating to mental health records, any actions must follow the rules set forth in the Mental Health and Developmental Disabilities Confidentiality Act.  This statute prevents the release of mental health records except in extraordinary circumstances. Furthermore, in order to obtain these records, the attorney needs the consent not only of the client but also of the therapist. 

Under the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), the therapist-patient relationship is protected. This protection prevents the admission of evidence of a therapeutic relationship, as well as a diagnosis and treatment of a patient  740 ILCS 110/10 (a). Furthermore, the therapist can invoke the therapist-patient relationship even when the patient has granted consent. Because of the sensitivity of the records, the therapist can assert that disclosure could potentially harm their patient. 

What Happens If the Patient or Therapist Refuses to Release Medical or Mental Health Records in Illinois Child Custody Cases?

In all child custody cases, the family court's primary consideration will be to identify the child's "primary caretaker." Ultimately, the court will base its decision on what it believes best serves the child's best interests. For this reason, the medical and mental health of all parties is relevant. Disclosure of this information with the “written consent of the patient,” is allowable. However, there are times when the patient or the therapist refuses to release these records. It is especially difficult in regards to mental health records as both the patient and therapist must provide consent.

In child custody disputes, the right to privacy regarding physical and mental health is weighed against the best interest and health of the child.  The patient-therapist relationship needs to be balanced against the need for disclosure. If negotiations fail between the two parties, the attorney can seek the information pursuant to a subpoena which indicates that the other party’s mental  and physical health is an issue in the case. The attorney should scrupulously follow all the requirements necessary in attempting to obtain psychological records.  In Mandziara v. Canulli, 299 Ill.App.3d 593, 701 N.E.2d 127, 233 Ill.Dec. 484 (1st Dist. 1998), an attorney was sued personally for subpoenaing his opponent’s mental health records without first obtaining a court order permitting the subpoena.

For more, check out our article: Does HIPAA Prevent Release of Medical Records in Illinois Litigation?

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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