The risk of sending South Carolina family law clients to counseling

Many family law clients in the initial stage of custody or divorce litigation could benefit from counseling. Whether it is developing better coping methods for handling the stress of separation and litigation, learning how to better communicate with a co-parent, or learning how to better handle conflict with an estranged spouse or co-parent, the skills one can learn in counseling can be invaluable. South Carolina has two separate code provisions that are supposed to protect such counseling information from disclosure. However these provisions have exceptions and sometimes these exceptions can be used to compel disclosure–even in situations where such counseling information should not be disclosed.

The two statutes at issue are S.C. Code § 19-11-95, titled “Confidences of patients of mental illness or emotional conditions,” and S.C. Code § 44-22-90, titled “Communications with mental health professionals privileged; exceptions.” Both statutes generally protect such counseling information from disclosure. However, S.C. Code § 19-11-95(D)(1), specifies, “A provider shall reveal: (1) confidences when required by statutory law or by court order for good cause shown to the extent that the patient’s care and treatment or the nature and extent of his mental illness or emotional condition are reasonably at issue in a proceeding; provided, however, confidences revealed shall not be used as evidence of grounds for divorce.” This provision has been used by the court to order disclosure of counseling information in custody cases.

There are a few situations in which counseling records should probably be subject to disclosure. When one lists the counselor as a witness at trial, disclosure of the counseling records is reasonable–as case law notes, one should not be able to use a privilege as a sword and a shield. Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526, 530 (Ct.App. 1998). S.C. Code § 44-22-90 explicitly makes a patient introducing his mental condition in a civil proceeding as an element of his claim or defense as a basis to waive the confidentiality privilege.

When a client suffers from a serious mental illness that impacts his or her parenting ability, counseling records should be subject to disclosure. See S.C. Code § 63-15-240(B)(12) (“In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to: …the mental and physical health of all individuals involved…”). S.C. Code § 19-11-95(D)(1) would appear to authorize such disclosure in that circumstance.

However, where a party does not place his or her own mental condition at issue, and where a party does not suffer from a mental condition that impacts his or her parenting ability, records of counseling intended to assist in adjustment to a post-divorce life or to better handle conflict with estranged spouses or co-parents should not be subject to disclosure. When I have obtained from my client’s mental health counselor an affidavit indicating my client does not suffer from any mental condition that impacts his or her parenting ability the family court has, with one exception, protected the counseling records.

However that exception is extremely problematic. An order compelling a client to release counseling records in interlocutory and not subject to appeal. Patterson v. Spector Broadcasting Corp., 287 S.C. 249, 335 S.E.2d 803 (1985) (an order compelling discovery is interlocutory and not directly appealable). Instead, “to challenge the specific rulings of the discovery orders, the normal course is to refuse to comply, suffer contempt, and appeal from the contempt finding.” Davis v. Parkview Apartments, 409 S.C. 266, 762 S.E.2d 535, 543 (2014).

Advising a client to refuse to release counseling records and suffer the contempt is dangerous. In practice the family court will hold the client’s contempt against the client at trial. In theory, the family court could place the client in jail until he or she releases the records, so the client could languish in jail while the appeal is heard and lose custody if the client had custody before going to jail. While a test case challenging a family court’s order to release counseling records when the client does not suffer from a condition that impacts parenting ability and does not intend to use the counselor as a witness at trial would create greater uniformity among family law judges, there is no good way to bring that test case to the appellate court.

In the case described above my client released her counseling records rather than risking contempt. While she discontinued counseling, we decided to use the counselor as a witness at trial and elicited testimony that her husband’s demand for counseling records was one more attempt by him to bully my client–a contention the trial court accepted.

While I still advise certain clients to get counseling when I believe it will help them better handle the stress of domestic litigation or better engage with an estranged spouse or co-parent, I no longer feel comfortable guaranteeing them that these records will never be disclosed. Family law litigants should not have to risk counseling records being disclosed when they engage in counseling for the purposes noted above.

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  • Greg,Thanks for an important discussion. As a Licensed Professional Counselor who works in a lot of court-involved situations, I see this issue from an additional perspective. Although I have only had to produce my entire counseling file on one occasion, it was a difficult case as it resulted in a modification of custody. Despite the fact that I have been doing this for over 10 years and this was the only time it happened, I have seen on multiple occasions individuals and co-parents who desperately needed counseling, but were afraid to engage in it for fear of compromising the confidentiality of the process….tough.

  • Stephen G.

    To me, since the U.S. Supreme Court also views protection from self-incrimination and a right to privacy as “substantial rights,” an interlocutory order regarding release/use of counseling records should be subject to immediate appeal. Once admitted into court, the release of information to the opposing party cannot truly be “undone.” Therefore, (1) the order has conclusively determined the disputed question;
    (2) the order has “resolved an issue completely separate from the merits of the action”; and
    (3) the order is effectively unreviewable on appeal from a final judgment.” (Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004).)

    Additionally, could one argue the interlocutory order for release/use of the records orders affects the “mode of trial,” another substantial right, that cannot be vindicated after final judgment? By allowing the records, one is forced to argue the case differently than if the records were maintained as privileged (similar to how you changed tactics even if you may have preferred not to do so).

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