The right to life, liberty and the pursuit of happiness, the right to marry, to have a family and raise them as we, as individuals, see fit. These are only a handful of liberty interests protected by the Constitution of the United States. Some of those fundamental rights were recently extended to same sex couples. The Obergefell v. Hodges decision was rendered last June (576 U.S. 2015), reminding us that the Constitution is a living document, subject to the interpretation of nine (currently eight) justices with varied political viewpoints rooted in highly polarized ideologies. Fortunately for same sex couples, this decision extended the right to marry and raise a family without fear of illegitimacy or legal barriers to the rights traditional married couples enjoy.
We have heard a lot in the news about transgender rights, and the implications for businesses and individuals, but very little about the implications for a transgender parent who is seeking custody of a child. Many transgender persons are required to obtain diagnoses by a mental health practitioner prior to embarking on surgical interventions. The DSM-V currently defines gender dysphoria as ” a condition in which someone is intensely uncomfortable with their biological gender and strongly identifies with, and wants to be, the opposite gender. Some of these people may live as their desired gender, and may even seek gender reassignment surgery ..” How does a diagnoses such as gender dysphoria, or even seasonal depression affect a parent’s right to petition for custody of a minor child?
Trial courts or courts of first impression ensure that in any case involving a child, that child’s best interests are protected. In New York, when a custody or divorce proceeding involving minor children is commenced, the court will appoint a law guardian or attorney for the child to represent the child, interview that child and present her findings to the court in order to assess what actions should be taken, including removal from parental custody upon a finding of abuse or neglect. In these cases, the state may exercise it’s parens patriae authority, or “parent of the country”; which refers to the state’s role as guardian and protector of minors. The state’s authority to act in the protection of juveniles extends to a thorough investigation or fact finding excursion into the fitness of the parents. This discovery process often includes the destruction of doctor-patient privilege, specifically psychotherapist-patient privilege, in order to conduct a thorough investigation into the mental state of the accused parent. This is a slight consequence to most parents, when contemplating the permanent removal of a child.
But what about when two adults decide to divorce and they have children in common? For example, even if the children were not removed due to abuse or neglect, they are, nonetheless, protected by the Parens Patriae power of the court. In New York, if a parent files for divorce and custody, the parent seeking custodial rights automatically waives his or her right to the psychotherapist- communication privilege by placing his or her mental health “at issue” with the court in the same manner as would a parent facing removal due to alleged abuse or neglect. There are a laundry list of factors the court considers when making a custody determination, including the mental health of either parent. Some jurisdictions, including New York, view these statutory factors as actual elements of the claim for custody and visitation. Thus, the parent filing the petition automatically waives the privilege by placing her mental health “at issue”. Other states are on the opposite end of the spectrum, requiring a finding of abuse or neglect before the mental health records may be disclosed to opposing counsel or the court.
However, even in New York, when the petitioner-parent seeking custody waives this privilege, simply filing a petition does not necessarily mean the court will require the parties to submit mental health records. The court may conduct an in camera review of the records to determine which records are relevant, if any, and which may be disclosed. In most cases, the court must balance the countervailing interests of the parent in maintaining the confidential relationship with the psychologist and the court’s interest in making a reasoned fact-finding and determination about either parent’s fitness to have custody. If you are considering seeking custody or amending an existing custody order, and have a history of mental health treatment, call an experienced family law practitioner today. I would be happy to offer a free phone consult with no obligation.