Supreme Court Of New Jersey Creates Unified Mental Health Service Provider Privilege

The question of a parent's mental health often arises in the midst of a custody dispute, with a family court judge faced with the difficult questions of whether there actually exists a mental health issue and, if so, how does it impact upon the child's best interests under New Jersey's custody statute. While the "fitness of the parents" is a specifically enunciated factor under the statute, a parent's mental state also interweaves its way through many of the other statutory factors.

What happens, then, when the parent whose mental status is in question is undergoing or has undergone some form of therapeutic/psychiatric treatment? Is what transpired during the sessions relevant to the custody analysis? Is the family court judge entitled to review and use such information? Can the information be mandatorily disclosed to the other party and/or expert tasked with making a recommendation as to custody and parenting time? Until now, the New Jersey Rules of Evidence provided that most communications between a party/patient and the mental health care provider are subject to an evidentiary privilege and, thus, the person holding the privilege can refuse disclosure.

The Supreme Court of New Jersey in Kinsella v. Kinsella, 150 N.J. 276 (1997), noted exceptions to the psychologist-patient privilege where the subject party effected a limited waiver of the privilege by placing his or her emotional and mental state in issue, and where a so-called "piercing" of the privilege is required in the best interests of the child. The Court was careful in distinguishing between a "typical divorce custody proceeding" and one where a "parent's capacity to care adequately for the child" is in question because of a mental stability issue (perhaps, for instance, the party was recently hospitalized due to a nervous breakdown).

There are many different types of mental-health care providers beyond a psychologist or psychiatrist, however, where the privilege of communications with a patient/litigant may come into play in a family court matter. Inconsistency as to the application of such privileges, however, led to a recent amendment to the New Jersey Rules of Evidence that will take effect next year.

Specifically, on September 15, 2015, the Supreme Court of New Jersey adopted what is being referred to as a unified "Mental Health Service Provider-Patient Privilege" under New Jersey Rule of Evidence 534. The Notice to the Bar describes the new rule as modifying or replacing...