IICLE Family Law Flash Points - April 2022

First District: Parent’s Ability To Access Evidence Limited Under Mental Health and Developmental Disabilities Confidentiality Act if Child Exercises Privilege, Even if Parent is Entitled Under Allocation Judgment

 In re Marriage of Wendy W., 2022 IL App (1st) 201000, a postjudgment proceeding in which the mother sought to restrict the father’s parenting time based on allegations that the father would interfere with the child’s mental health services and the minor child did not consent to the father seeing records protected by the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act), 740 ILCS 110/1, et seq., the father moved for production of the child’s medical, psychiatric, psychological, and school records from the mother, who held the records. The trial court denied the father’s request. The First District answered the following certified question: May a trial court, in a proceeding relating to a petition to restrict parenting time pursuant to §603.10 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., in which allegations involve the mental health of a child who is at least 12 but under 18 years old, deny a parent, based on the provisions of the Confidentiality Act and the best interests of the child, the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want said evidence disclosed to that parent. The First District answered in the affirmative and held that the trial court may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child the ability to access such information, except for limited records regarding the child’s current physical and medical condition, diagnosis, treatment needs, services provided, and services needed, on the grounds that the child in question does not want said evidence disclosed to that one parent. The records referenced above that the father was permitted to receive are specifically enumerated in the Confidentiality Act as an exception to the documents that are protected by the privilege for a child older than 12 but under 18 years of age. The court said the father could not avoid the effect of the child asserting his privilege by seeking the documents from another source besides the therapist. The child had not taken any action to forfeit his privilege against the disclosure of confidential records and communications, and he did not introduce his mental health as a claim of his in his parents’ postjudgment proceeding.

The appellate court answered two certified questions in addition to the question above pertaining to whether the father had a right to see the records in question per the allocation judgment and because the child representative had also viewed the records. The court held a trial court may deny a parent, based on the provisions of the Confidentiality Act or best interests of the child, the ability to discover the child’s medical records protected by the Confidentiality Act even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ parental allocation judgment. The minor child was not a party to his parents’ underlying petition for dissolution of marriage or allocation judgment, so it could not be said that he forfeited his right to assert his privilege under the Confidentiality Act. The patient alone holds the privilege and alone can waive it. Because the patient alone holds the privilege, the patient can control who sees such records and communications.