Daniel H. Stock writes:
When Pat Benatar sang “Hell Is for Children” (1980, Giraldo, Benatar, Capps, BMG Rights Management), she might have been referring to the plight of minors in custody litigation. It only gets worse for children in custody fights who are in psychotherapy and want to keep communications between themselves and their therapists private. This article examines the vexing problem of determining when young or incompetent children in custody cases have the right to waive their therapist-patient privilege of confidentiality.
A person who actively contests custody presumptively places in issue her mental and physical condition and waives privileges that might otherwise prevent the introduction of such evidence. See, e.g., Baecker v. Baecker, 58 A.D.2d 821 (2d Dep’t 1977). Thus, otherwise assertable privileges such as those found in CPLR §4507 (psychologist/patient privilege) and CPLR §4508 (social worker/client privilege) do not shield the custody litigant.
Read more on New York Law Journal.