Can marriage counseling records be subpoenaed?

Disclaimer: This is not legal advice.

It is tough for people to admit they are struggling and go to therapy. Many variables are preventing them from taking that step. In the event of a divorce, the fear of marriage counseling records being subpoenaed is a big one. In therapy, intimate secrets, fears, concerns, struggles, and more are revealed. The thought of anyone else knowing these things is terrifying. 

Therapists also dread receiving subpoenas and want to avoid them at all costs. Therapists have a legal, ethical, and moral responsibility to keep the confidentiality of their clients, except for the client reporting future suicidal thoughts/behaviors, future homicidal thoughts/behaviors, and past/present/future abuse of a child under 18 years old or anyone over the age of 60 years old. If you have been experiencing any suicidal thoughts, reach out for help immediately. You can reach the National Suicide Prevention Lifeline at 1-800-273-8255, 24 hours a day, 7 days a week.

 When dealing with subpoenas, the enforceable ones pertain to child custody cases, which does not mean everything has to be disclosed to the courts and should involve one lawyer to protect the client and protect the therapist. 

CHILD CUSTODY CASES

The majority of divorce cases that require therapy records to be subpoenaed are child custody cases. The family court judge has to determine if the parents are fit to raise the child(ren), and therapy records can shed some light in that area. Judges want to know if the parenting behavior shows evidence of abuse, neglect, or any adverse behaviors toward the child(ren). This information can be obtained from the diagnosis, therapy notes, records of billing, and treatment plan progress. The only vital information is anything pertaining to the well-being of the child(ren). An attorney can fight the subpoena for therapy records in any other divorce cases dealing with alimony or separation of assets. 

DISCLOSABLE RECORDS

The substance of what can be disclosed in court is protected under the rules of evidence and HIPAA laws. If a therapist is subpoenaed, they are not required to turn over everything in the files. When subpoenaed, the therapist is also not required to acknowledge that they know or treat the person whose records are subpoenaed. The therapist has the right to determine the subpoena's validity, follow up with the client for authorization to release information, and consult an attorney. Therapists can sometimes be discretionary in what information they release by summarizing what they deem relevant versus releasing the entire file or testifying in person. 

ATTORNEY PRESENT

Whenever anyone is presented with a legal matter, it is vital to consult with an attorney. All parties involved should have their own legal representation. The purpose of the attorney is to protect their client’s interest. Even though the client and the therapist are technically on the same side, their legal interests are probably different. The attorneys will work to protect the rights of the client and therapist; they may provide alternatives to putting the records in a full review, and they may obtain a protection order to avoid the disclosure of information.