Can you force your spouse to see a psychiatrist?

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Mental Examinations In An Illinois Divorce

Can you force your spouse to see a psychiatrist?

As a divorce attorney, I have been told many times by potential clients that “my spouse is crazy.” Are all these spouses really mentally ill? We can always find out if a spouse has mental health issues using Illinois law.

“Information is obtainable as provided in these rules through any of the following discovery methods: …physical and mental examination of persons.” Ill. Sup. Ct. R. 201(a)

A motion can be filed for a mental examination of a party to a divorce under Illinois Supreme Court Rule 215.

“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Ill. Sup. Ct. R. 215

The point of a 215 examination is to discover what is true.

“The purpose of…rule [215] is to allow discovery that will assist the trier of fact in reaching its determination.” In re Estate of Silverman, 628 NE 2d 763 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993

“Rule 215 is a rule of discovery, the purpose of which is to permit the discovery of facts which will assist the trier of fact to reach a correct determination of the issues before it. This rule does not permit unlimited and indiscriminate mental and physical examinations of persons but by its terms gives a trial court discretion to order such examinations only when certain requirements are met. The person sought to be examined must be a party (or a person in his custody or legal control), the physical or mental condition of that person must be in controversy, and good cause must be shown for the examination. Then, and only then, is discovery of that person’s physical or mental condition authorized by this rule… Rule 215 contemplates that the trial court in its discretion may order the physical or mental examination under appropriate conditions when all requirements of the rule have been met, irrespective of who has raised the issue of the person’s physical or mental condition.” In re Conservatorship of Stevenson, 256 NE 2d 766 – Ill: Supreme Court 1970

Once discovered, that information can be organized and presented as evidence at a hearing or trial.

“[T]he language of the Supreme Court rule specifically vests discretion in the court to order a psychiatric examination and report during trial.” Marcus v. Marcus, 320 NE 2d 581 – Ill: Appellate Court, 1st Dist. 1974

Just because you ask for a mental examination of your spouse does not mean the request will be automatically granted.

“[A] party moving for a physical examination under [Rule 215] bears the initial burden of establishing good cause for the requested examination” Thompson v. Palos Community Hosp., 627 NE 2d 239 – Ill: Appellate Court, 1st Dist., 3rd Div. 1993

A mental examination is likely to be irrelevant in divorces without children. Without children, the only issues in a divorce are the division of assets and the possible payment of maintenance (formerly known as alimony).

Illinois divorce courts “divide the marital property without regard to marital misconduct” 750 ILCS 5/503(d)

Similarly, an Illinois divorce “court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct” 750 ILCS 5/504(a)

If a spouse’s conduct doesn’t matter in dividing assets or awarding alimony, a mental examination is probably unnecessary.

If children are involved in an Illinois divorce, a mental examination may be necessary if “good cause” is found.

“[T]he physical and mental condition of both parents is necessarily a material issue in cases involving custody of a child. Since the welfare and best interests of the child are compelling and paramount, it would seem that both parties would welcome an evaluation by qualified and impartial professional experts.” Marcus v. Marcus, 320 NE 2d 581 – Ill: Appellate Court, 1st Dist. 1974

“Child Custody determination necessarily depends on temperaments, personalities, and capabilities of parties involved and trial court is in best position to evaluate those traits.” See In re Marriage of Petraitas, 201 Ill.Dec. 259 (1st Dist., 1993)

Still, not every divorce with children makes a mental examination necessary.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)

What determines whether a mental examination of a party to an Illinois divorce is necessary is whether there is “good cause.”

“[A] trial court [can] order[] [a party] to submit an affidavit establishing “good cause” under Supreme Court Rule 215 for [an examination]”Harris v. Mercy Hosp., 596 NE 2d 160 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

“The provisions of Rule 215 are not mandatory, but vest broad discretion in the trial court to determine whether a physical examination should be ordered.” People ex rel. Yarn v. Yarn, 392 NE 2d 606 – Ill: Appellate Court, 1st Dist. 1979

Rule 215 examinations can take many forms so long as a licensed professional is administering the examination per the rule. A blood test, a COVID test, a breathalyzer test or a drug test may all be requested under Rule 215.

Objecting To A Rule 215 Mental Examination In An Illinois Divorce

The subject of a Rule 215 examination can object to the examination. After all, disclosing one’s mental health is a deeply personal issue.

However, the examination will proceed over objection of the examinee “[i]f [a party] can show… by affidavit or by competent expert witnesses that the procedure can be done safely” Sarka v. Rush Presbyterian-St. Luke’s, 566 NE 2d 301 – Ill: Appellate Court, 1st Dist., 2nd Div. 1990

If the licensed professional doing the examination is a doctor or psychiatrist, whatever is disclosed in the Rule 215 examination will not be subject to physician-patient privilege.

“[T]he physician-patient privilege does not apply to an examination by a court-appointed physician” Doyle v. Shlensky, 458 NE 2d 1120 – Ill: Appellate Court, 1st Dist. 1983

A Rule 215 mental examination is not the first step to being institutionalized. A mental examination is merely an initial examination for the purposes of discovery as it pertains to the ongoing divorce.

“No respondent may be found subject to involuntary admission unless at least one psychiatrist, clinical social worker, or clinical psychologist who has examined him testifies in person at the hearing. The respondent may waive the requirement of the testimony subject to the approval of the court.” 405 ILCS 5/3-807

Once ordered by the court, a party to a divorce must submit to the mental examination or face sanctions from the court.

“[T]he courts have traditionally found broad authority in Supreme Court Rule 215 to order [medical examinations] and punish refusal with contempt citations.” People ex rel. Aldworth v. Dutkanych, 493 NE 2d 1037 – Ill: Supreme Court 1986

“Sanctions under Rule 219(c) (103 Ill.2d R. 219(c)) are to be imposed only when the noncompliance is unreasonable and the order entered is just. In determining whether the noncompliance is unreasonable, the standard is whether the offending party’s conduct is characterized by a deliberate and willful disregard for the court’s authority… Once a court finds that there has been a refusal to comply with the discovery rules, the burden is on the noncomplying party to show that the refusal is reasonable” In re Marriage of Kutchins, 510 NE 2d 1300 – Ill: Appellate Court, 2nd Dist. 1987

Requests for mental examination of a spouse must be made early in a divorce case. Rule 215 examinations cannot be a final “Hail Mary” attempt to discredit your spouse before trial.

“[A] court may refuse a motion made under Supreme Court Rule 215(a) if it is not made “within a reasonable time before the trial.” 134 Ill.2d R. 215(a)” Copeland v. McLean, 763 NE 2d 941 – Ill: Appellate Court, 4th Dist. 2002

The report by the examiner is not the end-all-be-all of a divorce case. The judge will weigh the report and testimony of the examiner against all the other evidence in the case and may dismiss the examination entirely.

“[T]he trier of fact is not required to accept the opinion of the expert” Merchants Nat. Bk. v. EJ & E. RY. CO., 273 NE 2d 809 – Ill: Supreme Court 1971

A Rule 215 examiner is there to uncover and disclose facts about the party’s mental state not to issue a final adjudication as to fundamental issues such as the party’s children’s best interest.

“The purpose of the rule permitting the court to order a party to submit to physical or mental examination by a physician suggested by the party requesting examination is not to provide an expert witness for the litigant but to permit discovery.” Carlisle v. Harp, 558 NE 2d 318 – Ill: Appellate Court, 5th Dist. 1990

Mental Examinations Of Children In An Illinois Divorce

Rule 215 mental examinations may only be requested of the parties to the case: the spouses. This must be distinguished from any mental examination or investigation of the children in a divorce where custody is at issue.

Examination of children in a divorce may be done by invoking Illinois statute 750 ILCS 5/604.10 whereby the court may appoint a professional (presumably a psychiatrist) to determine the best interests of the children.

“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)

If either party is not satisfied with the report of the court’s professional, that party may hire their own professional to issue a, hopefully, contrary report.

“Evaluation by a party’s retained professional. In a proceeding to allocate parental responsibilities or to relocate a child, upon notice and motion made by a parent or any party to the litigation within a reasonable time before trial, the court shall order an evaluation to assist the court in determining the child’s best interests unless the court finds that an evaluation under this Section is untimely or not in the best interests of the child.” 750 ILCS 5/604.10(c)

If you believe your spouse’s mental health is a pertinent issue in your Illinois divorce, you need to know how a Rule 215 mental examination can bring that issue to the court’s attention. Contact my Chicago, Illinois family law firm to speak with experienced Chicago divorce attorney.