A person whose spouse is seeking custody and spousal support in a divorce can obtain the spouse’s confidential mental health records that are deemed by a court to be relevant to the divorce, the Ohio Supreme Court ruled today.

A divided Supreme Court affirmed an Eleventh District Court of Appeals decision, which found that a parent seeking child custody or a spouse seeking spousal support waives the physician-patient confidentiality privilege.

The Supreme Court’s opinion reasoned that a trial court, by law, must consider the mental and physical conditions of parents and spouses when considering custody and support payments.

Writing the Court’s lead opinion, Justice Judith L. French explained the confidentiality privilege applies to a psychologist’s or psychiatrist’s patient relationship, but Ohio law allows for a narrow exception that can compel a mental health provider to produce the records, which the trial court reviews privately before determining if they can be used in the divorce proceedings.

The Eleventh District upheld a Lake County Domestic Relations Court decision, which allowed Keith A. Friedenberg to obtain the mental health records of his wife, Belinda Torres Friedenberg, from the Cleveland Psychoanalytic Center.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer joined Justice French’s opinion. Justice Sharon L. Kennedy concurred in judgment only.

In a dissenting opinion, Justice R. Patrick DeWine rejected the majority’s broad view that a party waives the privilege any time he or she seeks custody or spousal support.  According to Justice DeWine, the plain language of the statute only allows the release of physician records related to a “physical or mental injury” relevant to an “issue” in the case. Justices Michael P. Donnelly and Melody J. Stewart joined Justice DeWine’s dissent.

Wife Contests Records Request
Torres Friedenberg and Friedenberg were married in 1991 and had four children, who were still minors when Torres Friedenberg filed for divorce in 2016. Torres Friedenberg sought custody of the children and spousal support. Friedenberg also sought custody of the children.

During discovery, Friedenberg issued subpoenas for Torres Friedenberg’s mental health records, including those from her psychologist. Torres Friedenberg asked the trial court to block the release of those records, citing physician-patient privilege. Friedenberg countered that his wife’s claims for custody and spousal support placed her physical and mental conditions at issue, and that triggered the exception to the physician-patient privilege found in R.C. 2317.02(B)(1)(a)(iii).

Domestic Relations Court Grants Protected Review of Records
The domestic relations court magistrate overseeing the case denied the request to block the records and ordered the records requested by Friedenberg to be submitted to the court under seal. The court decided it would conduct an in camera inspection to determine if the records were relevant before releasing them. After receiving the records, the magistrate would not release the records, but ruled the lawyers for the couple could come to the court and inspect them, and the court would make copies of records that could be used.

Friedenberg argued the order hindered his ability to prepare for trial, and the magistrate agreed to release records if the parties drafted a protective order, which limited the dissemination to only the attorneys, the couple, and their expert witnesses. Torres Friedenberg objected, and the trial judge overseeing the magistrate agreed with the magistrate that the wife’s request for custody and child support put her physical and mental conditions at issue, which waived her physician-patient privilege.

Torres Friedenberg appealed to the Eleventh District, which in a 2-1 decision affirmed the domestic-relations court’s decision. The wife then appealed to the Supreme Court, which agreed to consider the case.

Supreme Court Connects State Law and Court Rules
Justice French explained that state law provides a physician-patient privilege, and through R.C. 4732.19, licensed psychologists and their clients are entitled to the same privilege. But that privilege is subject to an exception granted by another state law — R.C. 2317.02(B)(1)(a)(iii) — which states than in “an action for wrongful death, any other type of civil action or a claim under Chapter 4123,” the physician-patient privilege does not apply. The Court today clarified that a divorce proceeding fits the law’s definition of “any other type of civil action.”

The lead opinion stated R.C. 2317.02(B)(1)(a)(iii) narrows the definition of which medical records can be released by stating that they be produced “in accordance with the discovery provisions of the Rules of Civil Procedure.” Under the Ohio statute, this means only testimony and records that relate “causally or historically to physical or mental injuries relevant” in the civil action, the opinion stated, and the reach is limited to minimize the amount of unprotected information that has to be revealed.

Torres Friedenberg argued her mental health records are not “causally or historically related” to the issues of child custody or spousal support, and her husband did not allege she had a mental health issue that prevented her from having custody of the children or hindered her ability to work.

The opinion stated the General Assembly has made the consideration of the parties’ physical and mental health “not only relevant but mandatory in determining both child custody and spousal support.”

Under R.C. 3109.04(B)(1), a court must take into consideration “all relevant factors,” including the mental and physical health of all persons involved when considering custody. And under R.C. 3105.18(C)(1)(c), the law similarly requires a court to consider the parties’ “physical, mental, and emotional conditions” when determining whether spousal support is appropriate and reasonable.

Record Release Not Dependent on Spouse’s Position
The lead opinion noted that Torres Friedenberg argued her medical records are not relevant because her husband has not asserted her physical or mental condition would inhibit her ability to parent or to work. The Court stated that the trial court’s duty to determine the issues of child custody and spousal support did not depend on whether Friedenberg raised the issue of mental health.

The lead opinion stated the law regarding custody or spousal support does not limit the consideration to only the factors challenged by the parties. A parent seeking custody of a child “subjects him or herself to extensive investigation of all factors relevant to the permanent custody award,” the opinion stated.

The Court noted the legislature requires trial courts to consider the physical and mental health of parties seeking child custody and spousal support, and “communications between those parties and their physicians regarding their mental and physical health will often be causally or historically related to issues in domestic-relations cases.”

The Court concluded that trial courts should continue to use in camera reviews to resolve disputes regarding which confidential records are relevant, and limit disclosure of the physician communications.

Dissent Finds Rule Misapplied
In his dissent, Justice DeWine wrote the Court’s lead opinion “collapses the inquiry” by considering whether the mental health records “relate causally or historically to issues in the divorce proceeding.” He maintained that is an incorrect reading of the law, which allows only the release of records related “causally or historically to physical or mental injuries that are relevant to issues in the case.”

The dissent explained if a patient was diagnosed with heliophobia and were unable to leave his house or maintain employment, that may constitute a “mental injury that relates to an issue in a child-custody or spousal support case,” and would be a proper subject of discovery. “But a patient’s reflections to a psychologist about the difficulties of his marriage are almost certainly not causally or historically related to a physical or mental injury and would therefore not be subject to disclosure,” he added.

The dissent maintains that the law requires the trial courts to consider all “relevant factors,” including mental and physical health, but that does not mean every factor is an “issue” in every case. Before releasing a physician’s record, the court must determine that the record is directed at an “injury,” and that the injury relates to something actually at “issue” in the case, which is “something actually contested,” the dissent stated.

“Contrary to the lead opinion’s contention, then, the parties to a divorce do not subject themselves to a fishing expedition through all of their physical- and mental-health records simply by seeking custody of their children or financial support from their spouse,” the dissent stated.

The dissent stated it would remand the case to the trial court to inspect the records, and release only those records related to an injury that is relevant to a contested issue in the case.

2019-0416. Torres Friedenberg v. Friedenberg, Slip Opinion No. 2020-Ohio-3345.

View oral argument video of this case.

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