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In custody and parenting time cases, it seems to be standard practice to require production of the parties’ mental health records to expert witnesses. In fact, the last three retainer agreements provided to me by potential expert witnesses on the issue of custody and parenting time included some variation of the following language: “Releases need to be signed by [the client] to permit this psychologist access to all educational, medical, psychological, legal, hospital, social services, and other records relevant to this assessment.”
That general practice cannot stand. For decades, our courts have required much more than mere relevance to compel production of mental health records. Of course, such records are generally privileged. See, e.g., N.J.R.E. 505 (psychologist-patient privilege). The New Jersey Supreme Court has recognized that the psychologist-patient privilege is modeled on and coextensive with the attorney-client privilege, and in fact, “the public policy behind the psychologist-patient privilege is in some respects even more compelling.” Kinsella v. Kinsella, 150 N.J. 276, 304 (1997).
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