Kinsella v. Kinsella and Medical Records

In divorce and child custody cases, there can be a wide variety of issues that could involve the medical and psychological history of one or both parties. These issues could include one party’s claim of an inability to work due to a physical disability, or claim by one parent that the other parent is unfit due to mental instability or drug abuse. During a process called discovery, spouses and parents may seek to have the other party produce documents and disclose certain facts. In cases where mental or physical abilities are at issue, those requests could include requests for certain medical documents. However, a parent is not necessarily entitled to any and all medical documents.

A case called Kinsella v. Kinsella addressed the issue of whether certain psychological records should be subject to a discovery request, or whether they were protected by confidentiality laws. In that case, the husband and wife both alleged that the other party had subjected the other to extreme cruelty. The wife’s allegations included detailed and extensive allegations of physical and emotional abuse against both her and the parties’ young children. Counselors for both the children and parents that were appointed by the court reported the children made disclosures that the father did physically strike them on more than one occasion. The wife sought to compel the father to produce records from his psychologist. The father objected, claiming they were protected by privilege rules and that he did not intend to call his psychologist as a witness at trial.

The New Jersey Supreme Court noted that there was a recognized privilege that applied to psychotherapist notes and communications under United States Supreme Court precedent as well as New Jersey Rule 505. The Court noted, however, that this privilege is not absolute, and in some situations a party may implicitly waive the privilege where the psychological state of the party is “at issue.”  The Court recited the three-part test to determine if the psychologist-patient privilege should be pierced: “1) there must be a legitimate need for the evidence; 2) the evidence must be relevant and material to the issue before the court; and 3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from a less intrusive source.”  After a review of the record, the Supreme Court determined that the wife had not satisfied the third prong, i.e. that she had failed to show she could not get the evidence she needed of the husband’s extreme cruelty from other sources. The Court also determined that the wife did not show that the evidence was necessary in order to obtain a divorce. However, the Court ultimately remanded the issue to the trial court for consideration of whether the psychologist records was necessary for the purposes of the child custody determination.

A history of mental illness can be very relevant to the issue of custody, but clearly the test for whether psychologist records may be available in discovery is complicated. You need an to help you with this issue. Contact us today at (732) 529-6937 for an appointment to talk about your children and medical records.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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