Divorce is especially hard on children. During the course of a custody battle, a parent may want to know their child’s exact mental state in order to argue that the child should spend more time with them and less time with the other parent. To do so, a parent may want to review their child’s mental health records and, possibly, present those records to the Illinois divorce judge.
When making decisions about a child in an Illinois divorce case, an Illinois divorce judge must base every decision on the “best interests of the child.”
“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)
AND
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)
When determining the best interests of the child for the purposes of parental decision-making or parenting time, a child’s mental health is always a factor.
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider… “the mental and physical health of all individuals involved” 750 ILCS 602.5(c)(3)
AND
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…the mental and physical health of all individuals involved” 750 ILCS 5/602.7(b)(7)
An Illinois divorce court will have a hard time considering the mental health of a child because mental health records CANNOT be disclosed without the permission of the patient…even if that patient is a child (of a certain age).
Mental Health Records Are Not To Be Disclosed In Illinois
“The Confidentiality Act imposes stringent protections on the disclosure of mental health records for litigation purposes, identifies who may request the records and for what purposes, and regulates how the request for disclosure should be made and handled.” In re Marriage of Wendy W., 2022 IL App (1st) 201000
“All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.” 740 ILCS 110/3
“[A]nyone seeking the nonconsensual release of mental health information faces a formidable challenge” Norskog v. Pfiel, 197 Ill. 2d 60, 72 (2001)
Children’s Mental Health Records In An Illinois Divorce
A child’s mental health records are subject to the exact same disclosure rules…even in regards to their own parents (in some situations).
If the child is under 12 years old, a parent can request the child’s mental health records with impunity.
“The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof…the parent or guardian of a recipient who is under 12 years of age” 740 ILCS 110/4(a)(1)
If the child has passed their 12th birthday, the child themselves has to give permission to release their mental health records to a parent.
“[T]he parent or guardian of a recipient who is at least 12 but under 18 years [can request the child’s mental health records], if the recipient is informed and does not object.” 740 ILCS 110/4(a)(3)
If the child does object, the parent can then request the mental health records of the child from the court.
“The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record.” 740 ILCS 110/4(a)(3)
Normally, a divorce court can order records relating to a child be disclosed to a parent if the court can find a good reason to do so.
“When a parent…petitions the court for access to the record beyond the limited information to which that parent is entitled, the court, in the exercise of its discretion in discovery matters” In re Marriage of Wendy W., 2022 IL App (1st) 201000
“The rules governing pretrial discovery vest wide discretion in the trial court” Pemberton v. Tieman, 117 Ill. App. 3d 502, 505 (Ill. App. Ct. 1983)
But, if the child objects, the privilege will likely stand. In order to preserve the child’s dignity and control over their own mental health records, the court will deny any request to review all the records.
The court “may deny the parent access to the full mental health record, including the type of information [a parent] sought in his discovery request, i.e., (1) the names, addresses, and telephone numbers of all the child’s medical, psychiatric, and psychological service providers; (2) copies of those service providers’ written reports; and (3) copies of all correspondence from those service providers.” In re Marriage of Wendy W., 2022 IL App (1st) 201000
To do otherwise would be a violation of The Confidentiality Act…which is a crime.
“Any person who knowingly and willfully violates any provision of [The Confidentiality Act] is guilty of a Class A misdemeanor” 740 ILCS 110/16
Even if the other parent or a Guardian Ad Litem “would be in violation of the Confidentiality Act if they ignored the minor child’s objection and forwarded any confidential record or communication in their possession to [the other parent].” In re Marriage of Wendy W., 2022 IL App (1st) 201000
What Mental Health Records Can An Illinois Parent Request Even If Their Child Objects?
A child’s permission is not necessary for ALL mental health information. The current mental condition, diagnosis, treatment and medication can all be disclosed.
“Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any” 740 ILCS 110/4(a)(3)
What really exists beyond this list for the purposes of mental health issues? A therapist or psychiatrist’s notes, referrals or any other matter which might be in the patient’s file.
What parent is not going to want to see their child’s entire file?
School Therapists, Counselors And Privelege In An Illinois Divorce
Most children’s interactions with therapists and counselors, initially, occurs through their school. This does not turn all school records into privileged mental health records which the child, themselves, can withhold.
“[P]rivileged records and communications under the Confidentiality Act do not include a minor child’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent under section 4(a)(3) of the Confidentiality Act access to the nonprivileged school records of a minor child who attends a therapeutic school even if that child, who is at least 12 but under 18 years, objects to the parent’s request to inspect and copy those records. Furthermore, the trial court may conduct an in camera review to ensure that the therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive.” In re Marriage of Wendy W., 2022 IL App (1st) 201000
Children’s mental health records are a sensitive issue that all parents should respect as they try to carve out their new lives as single parents. A divorced parent’s child’s mental health should be a priority for that parent but that doesn’t mean disregarding the child’s autonomy and dignity.
To learn more about how to protect or get access to your child’s mental health records, contact my Chicago, Illinois family law firm to discuss the matter in confidence.
