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Are Medical Records Private in an Arizona Divorce or Can They Be Used?

The question of whether medical records could be used in a divorce case was settled – so long as the issues of parenting time and legal decision-making were in dispute, all medical records relevant to these issues were to be exchanged and could be used in a family law case. The same was true of medical records pertaining to a spousal maintenance claim – medical records were relevant and could be used in the case.

The law in this area was recently revisited. On July 12, 2022,  Division One of the Arizona Court of Appeals issued its ruling in J.F. v. Como[1] which addressed the conflict between a statutory privilege (to privacy of one’s medical records) and the best interests of children (as required by statute). The decision in JF has changed the law significantly in this area.

The Facts:    The JF case revolved around a Father that had an (undisputed) alcohol use disorder. Father was asked to provide his counseling and alcohol rehab records for a period of five years but he refused. His refusal was based upon the protection afforded by the psychologist-patient privilege contained in  A.R.S. § 32-2085(A).[2]

Mother’s Argument:    Mother sought Father’s medical records for the preceding five year period. In support of her request, Mother argued that A.R.S. § 25-403(A)(5) requires the court to consider the mental and physical health of the parties and that the medical records are necessary to evaluate the best interests of the children. Further, Mother relied upon an adverse presumption that could be made against a parent who abused drugs or alcohol within the prior 12 months. See A.R.S. § 25-403.04(A).

Father’s Argument:    Father argued that his records were protected by A.R.S. § 32-2085(A) and that he did not waive that privilege.

The Decision:   The Court of Appeals recognized the “tension between Arizona child custody law, which hinge on a child’s best interest, and a parent’s privacy interest” under a statutory privilege and analyzed each. As to the children’s best interest, the Court of Appeals confirmed that a court has the obligation to act in the best interest of children and concluded that “a child’s best interest represents the lens through which Arizona courts must review and decide all custody disputes.” As to the psychologist-patient privilege, the Court noted that the privilege can be waived by placing that particular medical condition at issue but ultimately, if a parent’s privacy interest squarely conflicts with a child’s best interest, the interest of child prevails. The Court also addressed a limitation on the scope of the records to be disclosed and suggested an inspection by the Court to ensure release only of those records needed to protect the best interest of the children thereby creating the least restrictive or intrusive means of protecting both the children’s best interest and the parents’ privacy. The Court also directed that the medical records to be provided should cover the “shortest period required to accomplish [the Court’s] statutory objective.”

The Detail.     The Court of Appeals found that Father waived his privilege by  seeking legal decision-making and by “affirmatively seeking unsupervised parenting time and then a reduced alcohol testing requirement.” The Court made it clear that a party cannot use treatment as proof of his fitness argument yet then hide behind the privilege and withhold the evidence from the Court. The Court also limited the records to be provided to a period of one year (rather than the five year period sought by Mother).

The Dissent:    The decision of the Court of Appeals was not unanimous. Judge Swann argued that the statutory protection is absolute but if a party invokes the privilege (not to disclose records which deprives the court of evidence relevant to the best interests of children), the Court may draw negative inferences therefrom. Judge Swann also disagreed that Father had waived his statutory privilege.

Takeaways:   The JF case provides some clarity but leaves other questions open:

  1. All medical records that the Court needs to evaluate the best interests of children will be relevant and shall be disclosed and used in family law cases.
  2. All medical records will be subject to “gatekeeping” by the Court to ensure that medical records which are not relevant will not be disclosed.
  3. The time period to be disclosed will be subject to argument. The period to be covered to determine recovery from alcohol issues will likely be limited to one year and it is probable that a similar time period will be imposed for other forms of substance abuse. Other medical or mental health conditions will likely necessitate differing periods of time.
  4. The specific medical conditions about which disclosure is required will be narrowly construed to exclude conditions which do not directly impact one’s fitness to parent children.
  5. It seems likely that similar restrictions will apply in the area of a spousal maintenance claim. Medical records will likely be limited to those conditions which directly impact the ability to become employed (or continue employment).

Arizona family law is nuanced and requires skilled and experienced family law practitioners.

[1] J.F. v. Como, 514 P.3d 299 (Ariz. Ct. App. 2022)

[2] In part, A.R.S. § 32-2085(A) prevents a licensed psychologist from “voluntarily or involuntarily divulge[ing] information that is received by reason of the confidential nature of the psychologist’s practice.” This privilege recognizes that “confidential relations and communication[s] between a client or patient and a psychologist . . . are placed on the same basis as those provided by law between an attorney and client.”

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