During a custody dispute over children, if the parties cannot reach an agreement between themselves as to the custody and parenting time arrangement that serves the best interest of the child(ren) at issue, the Court will then be called upon to make that determination for them. The Court is required to make findings as to , and will apply the 15 statutory factors of N.J.S.A. 2A:9:2-4, among which are factors that include the “fitness of the parents”, the “parents’ ability to agree, community and cooperate in matters relating to the child”, the “needs of the child”, and the “stability of the home environment offered”. The Court in such a case will often appoint a psychological expert, and the parties will often retain their own experts. In such cases, the mental health of one or both parents may be investigated. What if one or both parents is now or in the past received counseling, therapy or some kind of mental health treatment? Are there situations where what one tells a mental health care provider is evidential in a trial?
The Supreme Court of New Jersey has added a Rule of Evidence, N.J.R.E. 534 to the New Jersey Rules of Evidence, which is titled: Mental Health Service Provider-Patient Privilege. Notices to the Bar, with respect to this Rule, were properly announced on August 7th and 14th of this year. The proposal was presented, discussed and analyzed at the Judicial Conference held on September 2, 2015 in accordance with the statutory requirements imposed by N.J.S.A. 2A:84A-34.
As set forth in the September 15, 2015 Notice to the Bar, N.J.R.E. 534 is intended to create “a unified mental health service provider privilege, which is intended to modify or replace the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers.” The privilege, under this new Rule, applies to any confidential communications between the patient and the mental health service provider that occurs either during the treatment of or is in some way related to the patient’s mental or emotional well being. Consistent with the Notice to the Bar, Supreme Court Order, and the language of the actual Rule, this privilege is set to be effective beginning July 1, 2016.
The mental health service providers intended to fall within the meaning of this Rule, include: (1) Psychologists; (2) Physicians, including Psychiatrists; (3) Marriage and Family Therapists; (4) Social Workers, including Social Work Interns and Certified School Social Workers; (5) Alcohol and Drug Counselors; (6) Nurses; (7) Professional Counselors, Associate Counselors, or Rehabilitation Counselors; (8) Psychoanalysts; (9) Midwives; (10) Physician Assistants; and (11) Pharmacists.
As the Rule states, “A patient has a privilege to refuse to disclose in a proceeding, and to prevent any other person from disclosing confidential communications, as defined in subsection (a)(1),” of the Rule. Therefore, as it is the case with most, if not all privileges, this privilege is one that may only be claimed by the patient, the patient’s guardian, patient’s conservator, deceased patient’s representative, or if authorized by the patient, a member or members of the patient’s family.
The new Rule, however, provides eleven (11) exceptions to the general rule of privilege which are specifically built right into the language of the Rule. Those exceptions are set forth in subsection (e) of the Rule, which states that there is no privilege under the rule for a communication:
(1) Relevant to an issue of the patient’s condition in a proceeding to commit the patient or otherwise place the patient under the control of another or others because of alleged incapacity;
(2) Relevant to an issue in a proceeding in which the patient seeks to establish his competence, or in a criminal matter where the defendant’s competence to stand trial is put at issue;
(3) Relevant to an issue in a proceeding to recover damages on account of conduct of the patient which constitutes a crime;
(4) Upon an issue as to the validity of a will of the patient;
(5) Relevant to an issue in a proceeding between parties claiming by testate or intestate succession from a deceased patient;
(6) Made in the course of any investigation or examination, whether ordered by the court or compelled pursuant to Court Rule, of the physical, mental, or emotional condition of the patient, whether a party or a witness, with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise, and provided that a copy of the order is served upon the patient prior to the communication, indicating among other things that such communications may not be privileged in subsequent commitment proceedings;
(7) Relevant to an issue in a proceeding in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party under which the patient is or was insured;
(8) If the court finds that any person, while a holder of the privilege, has caused the mental-health service provider to testify in any proceeding to any matter of which the mental-health service provider gained knowledge through the communication;
(9) In the course of mental health services sought or obtained in aid of the commission of a crime or fraud, provided that this exception is subject to the protections found in N.J.R.E. 501 and N.J.R.E. 509 and is not intended to modify or limit them;
(10) Relevant to an issue in a proceeding against the mental-health service provider, arising from the mental-health services provided, in which case the waiver shall be limited to that proceeding;
(11) Relevant to a proceeding concerning an application to purchase, own, sell, transfer, possess, or carry a firearm, including but not limited to applications pursuant to N.J.S.A. 2C:58-3, or 2C:58-4, or a proceeding concerning the return of a firearm pursuant to N.J.S.A. 2C:25-21(d)(3).
Lastly, the Rule provides in subsection (g) that nothing in the Rule shall prevent or limit a Court from compelling disclosures where there has either been an explicit/implicit waiver of the privilege by the patient or there would be a violation of a constitutional right not to compel such disclosure after invocation of the privilege. The entire language of the Rule can be found here at N.J.R.E. 534.
While this Rule specifically indicates that there will be no disturbance to Rule 517 – Victim Counselor Privilege, as those communications are specifically excluded from this Rule and meant to be dealt with and covered by Rule 517 still, there is no indication as to how this Rule will affect, if at all, Rules 505, 506, 510, or 518. Under Rule 517, unlike most other privileges set forth in the New Jersey Rules of Evidence, the victim counselor has the privilege not to be examined as a witness in any civil or criminal proceeding with regard to any confidential communication. The entire language of the Rule can be found here at NJRE 517.
As it relates to the world of matrimonial law, this new Rule will certainly have some heavy implications as there are a number of mental health service providers that can be involved in a family dynamic, especially a family that is in the midst of separating and divorcing. It is important to note, as noted above, that there is a specific exception built into the Rule for mental health service providers that are appointed by the Court or compelled pursuant to the Rules of Court. Consequently, information that a parent provides to a court appointed psychological expert falls within an exception to the rule and is evidential in court. In any case where a litigant may be involved in a patient relationship with a mental health service provider, it is important to make that litigant aware of this newly adopted privilege. It is also worth noting that while the Rule specifically indicates that it will be effective July 1, 2016, the Rule does not make clear whether or not it will be applicable to any communications that occur prior to that date.
As always, the attorneys at James P. Yudes, P.C., are ready and able to discuss any matters that one may have regarding their divorce, regardless of whether or not mental health service providers are involved. However, if specific questions regarding those types of relationships arise, the attorneys here are willing and able to answer those questions and assist you with your case.