Custody disputes between divorcing couples often get ugly, with either side pulling no punches when it comes to why he or she is the better parent. As petty as it seems, one of the most common ways to showcase one's superior parenting skills is to draw attention to the other parent's personal flaws. For example, a mother who wants full custody may present evidence of her husband's recreational use of marijuana as proof of his inability to focus on the children. The courts, however, rarely take away a parent's right to at least have visitation unless the parent's actions place the children in danger, or expose them to a potentially dangerous situation.
While most parenting or personal flaws are not considered “dangerous”, having a mental illness could be viewed as having a negative impact on one's ability to be a stable parent. Even so, countless Americans are able to manage depression, attention deficit hyperactivity disorder (ADHD), bipolar disorder, and many other mental illnesses with a combination of medication and therapy. Knowing this, however, does little to quell your worries if your spouse is threatening to bring up your medical history in court.
It's important to understand that you are under no obligation to hand over your medical records to your spouse, or the court. The Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA, makes it illegal for your healthcare provider to release your records to a third party without your written consent. However, the New Jersey family courts are able to get around this law when the records are needed to make decisions about a child's welfare. The court may compel the records from your healthcare provider through a court order, or have you examined by a court-appointed psychologist, who will request the records in order to make the most informed decision possible. This doesn't mean that the court will automatically subpoena your medical records; the judge must ensure that the request is not just a fishing expedition for information that makes you look bad.
Keep in mind that you are not automatically seen as unfit or “lesser than” your spouse because of your mental illness. Any divorce-related decision involving children is ultimately based on the children's best interests. Unless you are refusing treatment, are a clear danger to others, or exhibit some other extreme behavior, it is highly unlikely that you will be denied regular and consistent contact with your children. In some cases, releasing your medical records could also be helpful if it shows that you are managing your condition well, and that it doesn't get in the way of you working or sustaining personal relationships. For more information about your HIPAA rights during a divorce proceeding, please speak with the experienced family law attorneys of Villani & DeLuca, P.C. With decades of trial experience in the New Jersey family courts, our attorneys are qualified to give you effective representation at your child custody, or any other divorce-related hearing.