Family law courts throughout the United States, including those in Illinois, have determined that a custody decision is to be made in light of the court’s determination of the "best interests" of the child.1 When considering the best interest of a child, courts look to relevant factors usually stated within the applicable statute. In Illinois, the factors listed include the wishes of the child and parent(s), adjustment to home and school, the mental and physical health of all the individuals involved, and the threat of physical violence or the occurrence of ongoing abuse, directed either against the child or against another person.2 Though the list appears to encompass many potential issues relevant to a child’s best interest, it is not exhaustive and no particular factor is considered paramount to another.3
"A custody action is a civil proceeding of momentous proportions. It not only affects the parents but dramatically and drastically affects the lives of the children . . .[I]n making an award of custody the polar star is to determine what is for the best interest of the children."4 Among the relevant statutory factors that may influence a final custody decision are the mental health of the parties as well as the presence of abuse or the potential of abuse of the child in question.5 However, the statute is silent as to how a court would obtain or apply such information.
With a child’s welfare and the rights of parents on the line, the judicial system, with its truth-seeking function, should require that all relevant evidence be admitted.6 In custody battles, the well-settled legal principle that "the public . . . has a right to every man’s evidence"7 should be even more applicable. However, many times a court is left to make a custody decision without key mental health information, especially where one parent seeks to introduce evidence of mental health by means of the testimony of a treating mental health professional. The exclusion of such evidence is the result of judicial interpretation of various statutes, particularly the Mental Health and Developmental Disabilities Confidentiality Act (the Mental Health Act).8
The problem arises because the therapist-patient privilege and a therapist’s duty to report abuse or neglect of children pursuant to the Illinois Abused and Neglected Child Reporting Act (the Reporting Act) are viewed and interpreted as separate and distinct doctrines. The judicial unwillingness to view these two doctrines as a tandem child protection measure leaves either the privilege statute or the mandatory reporting statute ineffective. The result of this divided application is amplified during a custody dispute, with the result that the court lacks the information it needs to make a proper custody determination. Unfortunately, it is the child’s best interest that is ultimately sacrificed.
Current Statutory Construction:
The Mental Health Act provides that information regarding mental health treatment can be disclosed only when a recipient of such treatment introduces his or her mental condition as an element of his claim or defense in any civil, criminal or administrative proceeding.9 However, in any proceeding under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), mental health is not deemed to be introduced merely by making a claim.10 Rather, in such a proceeding, a record or communication can be disclosed only when a recipient of treatment or a witness on behalf of a recipient testifies concerning that record or communication.11 Because the medical professional providing treatment is silenced, a careful practitioner wanting to avoid disclosure will ensure that his client does not open the door as to such information.12
The purpose of these statutes is to provide the patient with sufficient trust and confidence that health care workers will keep all treatment information confidential; open and frank communication between a patient and the caregiver is the result.13 However, the confidential nature of the communication between a patient and his caregiver is not absolute. When a patient discloses that he had abused or neglected a child, or is likely to do so in the future, the Reporting Act14 imposes a duty on the health care worker to report such information to an appropriate state agency. That statute was the ultimate result of continuing concerns about child abuse within our country. While child abuse was always a subject of concern, it wasn’t until 1962 that abuse of minors was recognized as a medical concern in the United States.15 Finally, by 1967 all states had enacted some sort of law requiring certain professionals to report abuse.16
Records of reported child abuse allow courts making custody decisions to fulfill their mandate to consider abuse and mental health of parents. However, mandatory reporting statutes appear to be in conflict with the privileged communication statutes, and sufficient attention has not been paid to their interaction with each other. This article proposes that attention be paid to that interaction in the hope of finding a solution to the problem of determining the best interests of a child where the parent seeking custody has mental health problems that may have resulted, or may result in the future, in abuse of the child.
Mandatory Reporting and Privileged Communication Statutes:
The assertion of privileged communication and mandatory reporting statutes have often been argued by legal scholars as two different means to the same end of protecting children.17 The statutory privilege of communication between a therapist and patient helps children because the abuser is more likely to seek effective help. This is brought about by the belief that the patient-abuser "will have sufficient trust and confidence to disclose his or her problem to [a] professional."18 Similarly, it has been argued that mandatory reporting statutes help abused children by initiating state action and treatment and thereby removing a child from a potentially dangerous environment.
However, many view these two statutes separately and fail to realize their effect when applied together. As a practical matter, both statutes affect a person at the same time. No person can pick and choose which statute should control on any given issue. In fact, a legal practitioner has the obligation to view the interrelation between these two statutory constructs and their effect on each other. The result is dramatic. In the end, the court loses its only ability to shed light on abuse or the potential of abuse, and ultimately the court lacks the information to make a decision in the child’s best interest.
While the purpose of a privileged communication statute is to foster open and frank communication between a patient and their caregiver, a mandatory disclosure statute undermines that very purpose. If patients were aware that abusive behavior would be reported, it would be difficult at best to imagine any patient disclosing potentially adverse information. This is especially true when the patient is in the middle of a heated custody dispute. Additionally, if a psychotherapist were to warn the patient about the duty to disclose, there would be a chilling effect on the patient’s open and frank communication. In all, if a patient is aware of the therapist’s duty to disclose, the entire privilege provision and its purpose are damaged, if not entirely destroyed.
It is more problematic is when information of abuse is disclosed to a therapist, and that therapist fails to abide by mandatory reporting statutes.19 Many times (four out of ten), the therapist will not report abuse or the potential of abuse.20 Therefore, the ultimate result is unnerving. First, abusers are less likely to disclose their abusive behavior, knowing such information would be reported to government agencies. Second, if abusive behavior is conveyed to a therapist, four out of ten times such behavior is never reported. The result is simple: despite the mandate that the courts consider the mental health of the parties and the potential or history of abusive behavior, such information remains unavailable when making a custody determination.
Relevant Case Law:
Many states have enacted statutory exceptions to the privileged status of communication between patient and caregiver.21 These exceptions arise within the context of custody disputes. Those states that allow the piercing of the privilege nevertheless do so in a manner that is completely unpredictable, depending upon whether a parent has or has not put their mental health at issue.22 In Illinois, however, the statutory construct appears to be more secure and predictable in its application, because there exists express statutory language stating that the issue of custody under the IMDMA does not equate to introducing one’s mental condition.23
Therefore, in Illinois, privileged medical information will remain confidential and will not be allowed for consideration within a custody dispute unless there is a waiver. In Gottemoller v. Gottemoller, the family’s psychiatrist was to testify as to the mental condition of the mother. However, the mother objected and the trial court upheld the confidentiality of the communications between the mother and the family’s psychiatrist.24 On appeal, the Gottemoller court noted that the psychiatrist-patient privilege is based on the premise that communication made within the "ambit of the relationship are intended to be, and should remain, confidential."25 However, the court found that the mother had signed a waiver of the privilege, and that the lower court was in error when it did not allow the psychiatrist to testify.26
While the Gottemoller ruling represents situations when the parent asserting the privilege has effectively waived it, there appears to be no limit as to what evidence the court will protect under the privileged communication statute when no waiver is present. One such case in Illinois is In re Marriage of Lombaer.27 In that case, the mother had not signed a waiver like the one involved in Gottemoller. Additionally, the evidence in Lombaer conclusively showed that abuse was inevitable: the mother avoided taking her prescribed mental health medications, became physically violent, and was subsequently institutionalized,28 psychiatric care was necessary to treat several "episodes" of mental illness and to prevent the mother from harming herself and others, including her children,29 and the mother harassed her husband, children, and school officials where her children attended classes, and exhibited other "bizarre" behavior, including looking at nearby high-rises with binoculars, eating baby food, and constantly questioning whether someone had drugged their household water supply.30
While the husband in Lombaer successfully introduced the above evidence at trial in order to establish custody of the parties’ two children, the appellate court found that such evidence was allowed in error. Additionally, the Lombaer court noted that the mother had not introduced her mental condition into the proceedings and that she had attempted to assert her right to confidentiality.31 Because there was no waiver of her privileged communications with her psychotherapist, such testimony was barred from the proceeding and the court held that the remaining "evidence was insufficient, as a matter of law, to establish that the mental or physical well being of the children would be jeopardized."32
The result of Lombaer is clear: absent waiver of privilege, any information related by a patient to their care provider will remain confidential, even if such information provides conclusive proof of abuse or the likelihood that abuse will occur in the future. These cases, however, do not address the situation where such information excluded at trial should have been reported pursuant to mandatory abuse reporting statutes.
To find an appropriate remedy to this complex problem is taxing at best. It would seem essential to keep the confidential nature of the patient-therapist relationship intact. The United States Supreme Court has long embraced the privileged status of medical information, and in fact has been critical of both federal and state courts for their implementation of a balancing test on the question of allowing privileged communications into evidence.33 However, society has a deep-rooted interest in the protection of its children, especially where there is a custody dispute. Astute attorneys should use those traditional tools currently available and utilize creative measures in the attempt to allow the court to fulfill its mandate in considering the mental health of the parents.
First and foremost, one should be cognizant of the fact that absent express waiver, medical records are not available via subpoena. It requires a court order to obtain records by subpoena.34 Second, the judge should make full use of the statutory permission to interview a child in chambers, or seek the advice of professional personnel.35 Many times evaluations shed light on either existing or potential problems. Also, obtaining testimony at trial may not be completely impossible. If the testimony you seek is information that should have been disclosed pursuant to mandatory reporting statutes (i.e. abuse), you should be able to convince the court that the protected nature of the testimony has been abrogated.
The child’s best interest standard has been applied for some time and yet problems continue to plague its application. The safety and well being of children are the only victims in the ongoing struggle to find an acceptable approach to reconcile potentially conflicting Illinois statutes in the determination of what to allow into evidence in a custody dispute. To what extent the courts are able to consider the potential of abuse or the mental health of the parties within custody disputes is unclear. Direct conflict with confidentiality statutes and associated concerns with mandatory reporting statutes leave parents, attorneys, and the courts with little guidance. Perhaps future case law or legislative changes will assist in the protection of children.
1 Donald L. Enockson, Discovery of a Parent’s Mental Health in Custody Cases, 26 Fam. L.Q. 43 (1992) (hereinafter Enockson); see also 750 ILCS 5/602 (2000).
2 750 ILCS 5/602 (2000).
3 Id. That statute reads, in pertinent part, as follows: "The court shall consider all relevant factors . . ."
4 Enockson, supra note 1, at 43 (quoting Atwood v. Atwood, 550 S.W.2d 465, 466 (Ky. 1976)).
5 750 ILCS 5/602(a)(5) (2000) ( "the mental and physical health of all individuals involved"); 750 ILCS 5/602(a)(6) (2000) ("the physical violence or threat of violence by the child’s potential custodian"); 750 ILCS 5/602(a)(7) (2000) ("the occurrence of ongoing abuse").
6 Karen L. Ross, Revealing Confidential Secrets: Will It Save Our Children?, 28 Seton Hall L. Rev. 963, 984 (1998) (hereinafter Ross).
7 Trammel v. United States, 445 U.S. 40, 50 (1980).
8 740 ILCS 110/10(a)(1) (2000) (explicitly noting that while records or communication may be introduced in a proceeding where the recipient of mental health treatment introduces his mental condition as an element of his claim or defense, under any action pursuant to the IMDMA, mental health shall not be deemed to be introduced merely by making such a claim and shall be deemed to be introduced only if a recipient or witness on his behalf first testifies concerning such record or communication).
12 735 ILCS 5/8-802 (2000) ("no physician, surgeon, psychologist, nurse, mental health worker, therapist, or other healing art practitioner shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient").
13 Ross, supra note 6, at 969.
14 325 ILCS 5/1 et seq.
15 Ross, supra note 6, at 964.
16 Id. at 965.
18 Id. at 969.
19 Id. at 967-68 (noting that approximately forty percent of required disclosures are never reported).
20 Id. (failure to report is usually attributed to the belief that reporting will result in more severe abuse or the belief that therapy will prevent future abuse).
21 See generally Courtney Waits, The Use of Mental Health Records in Child Custody Proceedings. 17 J. Am. Acad. Matrim. Law. 159 (2001).
23 740 ILCS 11/10(a)(1) (2000).
24 Gottemoller v. Gottemoller, 37 Ill.App.3d 689, 691, 346 N.E.2d 393, 394 (3d Dist. 1976).
25 Gottemoller, 37 Ill.App.3d at 695.
26 Id. at 696.
27 In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388 (1st Dist. 1990).
28 Lombaer, 558 N.E.2d at 390.
30 Id. at 392.
31 Id. at 393.
32 Id. at 395.
33 See generally Jaffe v. Redmond, 518 U.S. 1, 116 S. Ct. 1923 (1996).
34 See Mandziara v. Canulli, 299 Ill.App.3d 593, 701 N.E.2d 127 (1st Dist. 1998).
35 750 ILCS 5/604 (2000).
Paul D. Nordini is associate counsel for J. Richard Kulerski, P.C. in Oak Brook, Illinois, and concentrates in divorce litigation. He obtained his Bachelor of Arts in English in 1998 from Wayne State University in Detroit, Michigan, and his Juris Doctor in 2001 from DePaul University College of Law. Mr. Nordini can be reached at firstname.lastname@example.org.