The case dealing with this issue was In re Marriage of Wendy W., 2022 IL App (1st) 201000 (March 24, 2022) 4th Div., Cook County.
After the couple’s divorce was completed, the mother sought to restrict the father’s parenting time based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. Not knowing exactly what was going on with his child, the father prepared a discovery request seeking the child’s records. He wanted his child’s medical records, what prescriptions were ordered, and the child’s school records. The mother objected to the discovery request and the trial court denied Dad’s ability to see his child’s medical records. This appeal ensued.
Agreement on Access to Children’s Medical Records and School Records
At the time of the couple’s divorce, the parents agreed that each of them would have access to the children’s medical records and school records. One interesting aspect of the case is the language in the parties’ marital settlement agreement, which stated:
Parents shall be entitled to duplicate originals of the children’s school records (including but not limited to grade reports)” and if the children’s schools do not cooperate in this regard, then the parents shall timely provide these materials to the other except in cases of emergency. The allocation judgment also provides that “[e]ach parent shall have access to [the children’s] health care providers and medical and dental records, and each parent will provide the other with the names, addresses and telephone numbers, and any other relevant information necessary to access the providers of any health, psychological, dental or other care to their children.”
In light of that language in their agreement, why then is the father being denied access to his child’s records?
Mother Argues Against Disclosure of Child’s Medical Records Due to Patient-Therapist Privilege.
There is a long precedent for not disclosing therapy records in the discovery process. Why would anyone go to a therapist and say anything if they knew others would be able to read in their therapist’s notes and learn all about them? If the patient-therapist privilege existed, all of their secrets would be disclosed and discussed in a courtroom. Therapy would be pointless if a patient knew what they said could be disclosed. For that very reason, the therapy records are not discoverable by the other side in litigation.
In this case, however, a mother sought to restrict the father’s parenting time based on some mental health issues and the father is being denied access to those records. The court needs to decide if it will protect the child’s right to privacy against the father’s wishes to have his child’s medical records.
The Appellate Court Allows Limited Information
The court says that the records are privileged, but they did allow for some general disclosures, like the child’s current physical and mental condition, the diagnosis, treatment, and services needs. The father will not get to learn what the child is saying or know what he did wrong or if he did wrong.
Is it Fair for a Mother to Seek Supervised or Restricted Parenting Time if the Father is Not Allowed to Know What the Child is Saying About Him?
On a fairness level, it seems unfair then to restrict the father’s parenting time when he does not know what is being said about him. The mother alleged that their child suffered from extreme anxiety and depression, but is that necessarily attributable to the father? Depression is an illness and not something that someone just overcomes. So how can taking away the father’s parenting time alleviate that problem?
The child also exhibited concerning symptoms, which the mother blamed on the father once his parenting time resumed. The mother said that the child believed she was trying to kidnap the child and poison his food. The mother stated that she would not be telling the child that, so the father must have been doing it. Without knowing exactly what the child said, however, based on the trial court’s ruling, I imagine it would be hard for the father to combat the words the mother was saying the child said about him.
After the child had an emergency appointment with the psychiatrist, the psychiatrist and other health professionals advised that the child begin a partial hospitalization program. It was alleged that the father was not supportive of the child’s therapy and had refused to communicate with past health professionals. But again, how can the father be supportive of the child’s therapy if he isn’t being given access to the information? It is hard to understand how a mental illness of one’s child then becomes a parent’s fault, as if someone could make someone mentally ill. The court suspended the father’s parenting time.
In return, the father sought his child’s medical records. He asked for all the school records, the medical records, the psychiatric and psychological records. The father wanted copies of the correspondence from the mom and the child’s attorney and a list of all medicines his child was on. The trial court would not allow him to get the information.
Access to Medical Records Based on the Confidentiality Act Not Applicable
On appeal, the father argued that the trial court cannot deny him access to the requested records based on the Confidentiality Act because it was not applicable to his case.
36 SECTION 3(A) OF THE CONFIDENTIALITY ACT
36 Section 3(a) of the Confidentiality Act provides:
- 3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship. 740 ILCS 110/3(a) (West 2018).
37 Section 4(a)(3) of the Confidentiality Act provides:
- 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof:* * *(3) the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any[.] (Emphases added.) 740 ILCS 110/4(a)(3) (West 2018).
By its plain language, section 4(a)(3) provides that even though the minor child at issue here, who is between 12 and 18 years old, objected to the disclosure of his mental health records to his father, James may petition the court for access to those records. Moreover, despite the child’s objection, James is still entitled to request and receive the limited information specifically allowed under section 4(a)(3) about the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any.
Illinois Appellate Court Findings
In a proceeding related to a petition to restrict parenting time, where the allegations involve the mental health of a child who is at least 12 but under 18 years old, the trial court may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child. The father is entitled to limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed.
