Michael S.W. v. Shelli A.W.

71 Misc.3d 1203 (A)

142 N.Y.S.3d 789 (Table)

MICHAEL S.W., Plaintiff,

v.SHELLI A.W., Defendant.

12036/12

Supreme Court, Monroe County, New York.

Decided on March 25, 2021

Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Margaret McMullen Reston, Esq., Attorney for Plaintiff, Rochester, New York 14623

Paul B. Watkins, Esq., Law Offices of Paul B. Watkins, Attorney for Defendant, Fairport, NY 14450

Fauna M. Pappalardo, Esq., Attorney for Intervenor Child, Fairport, New York 14450

Richard A. Dollinger, J.

Sometimes, a trial judge becomes the 21st century avatar of the famed adventurer and journalist Henry Stanley, as the judge ventures into heretofore dark recesses of the case books, seeking the legal research equivalent of elusive "Dr. Livingstone,"¹ or, in this case, whether a father has a right to access mental health records involving his son after the son is no longer covered by a custody order.

The venture becomes even a bit more opaque when the Court seeks records of therapy sessions between the father, the mother and son — and a therapist — and the therapist's notes and emails that date back almost a decade.

In this matter, a father seeks to discontinue his support obligations for his child under a theory of alienation by his former spouse or constructive emancipation by the child through his own conduct. In detailing the allegations to support his complaints, the father alleges that the mother engaged in a longstanding series of endeavors to alienate her children from him. At the time of the divorce in 2011, there was no provision for therapeutic visitation. In 2013, the couple, after court proceedings, stipulated to a settlement that allowed the father therapeutic visitation with his son. There was no explicit provision for extended therapy with any other family members but the couple agreed that if the therapist required individual therapy sessions with either parent, the selected parent would pay for that session. Based on the record before this Court, it is impossible to determine what therapy occurred and whether either of the parents participated in any sessions.

According to father, the therapy may have involved a variety of types of sessions with the same therapist: the son, then 12-years old, visited the therapist by himself. The father also attended sessions with the son. The father alleges that the mother attended sessions with the son. It is unclear whether the father, mother and son attended sessions together. The father and the mother may have attended separate sessions. It is virtually undisputed that the therapy apparently produced some results involving the relationship between the father and his son. The undisputed evidence is that the son visited with and had a relationship with his father through at least 2017 and perhaps into 2018, almost half a decade after the therapy occurred.

Fast forward to 2020: the father, facing college support costs and other costs for his maturing children, filed an application to discontinue his support obligations. As part of the allegations regarding the alienating conduct of the mother, the husband brought an application to obtain a judicial subpoena for the records of the therapist who counseled his son and the family in 2013-2014. In the subpoena the husband sought the "counseling treatment" records for himself, his son and his ex-wife. The husband sought the "counseling records, evaluations, tests, and any case notes, correspondence and email" related to the treatments. In the affirmation accompanying the application, the husband's counsel included an email exchange between his ex-wife and the therapist, dating from February and April 2014. In the first email, the mother complained that the therapist had told her son that the mother "was sabotaging his relationship with his father." In a curious comment, the mother in a responding email said: "regardless even if there was merit from such an accusation, that is not something a therapist says to his 12-year-old client." The mother suggested that the therapy be terminated and commented that the interactions between her and the father "seems to have only gotten worse." The father was copied on this email. The therapist responded, refusing to terminate the sessions, commenting that "the son gets a great deal out of our sessions." The therapist said he would no longer meet with the mother and be "involved in the hate mail you send back and forth with your ex-husband."² The therapist concluded:

Your behavior while I was away on vacation was manipulative, diminishing, rude, abusive, nasty, self-absorbed, entitled and altogether on becoming. I have told the both of you and any number of occasions your continued fighting traps [your son] in the middle and is bad for him. While your ex-husband's difficulties are and have been very clear he has made a concerted effort to change his behavior, take responsibility for his behavior, and is responsive when I make recommendations to him. While it has been slow going with him he has and continues to make slow but steady progress. You on the other hand take no responsibility for your behavior or the impact that you have on either the situation or on [your son].³

The mother responded and requested of summary of the therapist's "current therapeutic goals" and the mother removed her consent to any further visits with the therapist.⁴ The therapist's comments—read at face value and ascribing the weight that such statements merit at this stage of the litigation—suggest that the mother's behavior had caused or contributed to a disruption in the child's relationship with his father. In order to support his claims and citing the therapist's emails, the father sought the judicial subpoena to the therapist to obtain the therapy records.

The mother, in her response, opposed the production, arguing that the nearly decade-old records were irrelevant by the passage of time and were also protected by the son's therapy privilege. In addition, the mother argued that the child, now age 20, should be notified that his father was seeking the therapy records and be given a chance to object to their production. The Court required the father's attorney to send the subpoena to the son and advise him of his opportunity to be heard. The son was granted intervenor status, retained counsel and submitted an affidavit in opposition, arguing that he regarded his father conduct as the sole reason for any estrangement. He said his father was abusive to him and his sister and their mother and said his father never accepted responsibility for his abusive behaviors.⁵ The mother sides with her son, arguing that the son's affidavit establishes that any estrangement is solely the product of the father's conduct and no evidence of interference on her part.

The general rule in New York is that "parents, being the natural guardians, and so the guardians of the person, can make the waiver" of the child's medical privilege. Corey v Bolton , 31 Misc 138, 143 (App Term 1900) ; see Scharlack v Richmond Mem. Hosp. , 102 AD2d 886, 888 (2d Dept 1984) (mother, as "parent and natural guardian" of minor, ordered to execute release of medical records of child). The federal Health Insurance Portability and Accountability Act (HIPAA) regulations generally assume that the parents of a child under 18 will be the caretakers of their medical records. 45 CFR 164.502 (g). The New York courts have added a gloss of precaution to such inquiries because in a custody case, if the parents themselves have an interest in the litigation, the parent's right to waive the privilege on behalf of their children may be lost. In addition, once a person reaches age 18, they control access to their medical records, regardless what period the records pertain to under HIPAA. See Atwell, Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults , 25 Alb LJ Sci. & Tech 1, 26 (2015) ("The Privacy Rule requires ... consent on the part of a patient before his or her PHI [i.e. medical records] can be released to a family member. This applies to anyone over the age of eighteen ..."]).

To respect these principles, the New York courts have generally denied parents access to their children's medical records, if the parent has an interest potentially contrary to that of the child. In Matter of Kayla S., 46 Misc 3d 747 (Fam Ct 2014) a child's medical records, including mental health records, were released to the court and parties in a neglect proceeding against the father.⁶ The Family Court ordered that the child's records not be disclosed in the concomitant criminal proceeding. With respect to the fact that the respondent was the child's father, the Court said

"the privacy interest in these records belongs to the child, not to the respondent. The child did not consent to production or use of these records, and the Family Court Act's authority to use them in the article 10 case does not give the respondent, his attorney, or anyone else the right to use them in other proceedings. Indeed, even if the attorneys in this case already possess the records and knowledge of the information contained therein, there has been no consent or legal permission to make use of that information in any other context or proceeding. The Family Court Act's provisions exist to protect children and provide respondents with a full and fair article 10 proceeding, not to serve as a windfall to litigants who might stand to benefit in other arenas from the possession of confidential and intimate materials"

Kayla S., 46 Misc 3d at 752-53. See also Matter of Dean T. , 117 AD3d 492 (1st Dept 2014) (also implicitly rejects the notion that a parent in a neglect proceeding automatically has access to a child's mental health records).

More to the point perhaps is Liberatore v Liberatore , 37 Misc 3d 1034, 1035 (Sup Ct Monroe Cty 2012) (Fisher, J.), a divorce action involving custody in which the father sought to introduce records obtained from one of the children's...