August 5, 2019 • 32 mins
You may not realize this, but your mental health may not be private in divorce and it could be used to restrict your parenting time.
That’s a counter-pull to the current initiatives in our society. We’re being encouraged to talk openly about, accept, and destigmatize mental health issues. We’re being urged to seek help and treatment for our issues.
And, when we do access help, we expect that to given in confidence. There’s a patient-physician privilege to protect us. That’s there to create an environment that cultivates trust and honesty which is fundamental to successful treatment.
But in parenting disputes, that privacy can be broken. The fact that you’ve sought treatment can be used against you.
So, what can you do to prepare yourself? What can you do to protect yourself?
Joining me for this Conversation About Divorce is New York-based family law and matrimonial attorney, Lisa Zeiderman. Zeiderman is the managing partner at Miller, Zeiderman and Whittaker and her work on this topic has appeared in Psychology Today.
You'll find a synopsis of this Conversation at my blog: https://sincemydivorce.com/warning-your-mental-health-may-not-be-private-in-divorce
That’s a counter-pull to the current initiatives in our society. We’re being encouraged to talk openly about, accept, and destigmatize mental health issues. We’re being urged to seek help and treatment for our issues.
And, when we do access help, we expect that to given in confidence. There’s a patient-physician privilege to protect us. That’s there to create an environment that cultivates trust and honesty which is fundamental to successful treatment.
But in parenting disputes, that privacy can be broken. The fact that you’ve sought treatment can be used against you.
So, what can you do to prepare yourself? What can you do to protect yourself?
Joining me for this Conversation About Divorce is New York-based family law and matrimonial attorney, Lisa Zeiderman. Zeiderman is the managing partner at Miller, Zeiderman and Whittaker and her work on this topic has appeared in Psychology Today.
You'll find a synopsis of this Conversation at my blog: https://sincemydivorce.com/warning-your-mental-health-may-not-be-private-in-divorce
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:02):
Getting a divorce. Even thinking aboutgetting a divorce can be overwhelming, scary,
and sometimes exciting. Join divorce coachand mediator Mandy Walker for conversations about
divorce. The more you know,the easier it will be to make your
divorce healthier, less trustful, andto put it behind you. Here's Mandy.
(00:24):
Welcome to conversations about divorce. I'mMandy Walker, and today we're talking
about mental health, privacy and divorce. There has been and continues to be
an increasing push in our society totalk openly about and to accept and destigmatize
mental health issues. And that's agood thing. We're being encouraged to seek
(00:45):
help and treatment for our issues.When we do, we expect that treatment
to be confidential. There's a physicianpatient privilege that protects us. It encourages
us to be open and honest withour healthcare provider, and that in turn
lays the foundation for more effective treatment. But what if that privacy can be
(01:06):
broken? What if the fact thatwe've sought treatment can be used against us?
That is the reality in divorce.When one party is seeking restricted parenting,
you may find that the help thatyou saw years ago is now being
used against you, So what canyou do to prepare and protect yourself?
(01:26):
Well? My guest today is NewYork based family law and matrimonial attorney lisa's
Daman. Lisa is the managing partnerat Miller's, Idaman and Whitaker, and
Lisa's written about this topic in PsychologyToday. Welcome Lisa, Thank you so
much. I'm so happy to behere. I thought a good place for
(01:48):
us to start would be if youcould give us a brief overview of what
happens in a child custody dispute.That could lead to having to provide details
of your mental health treatment. So, what happens in a child custody dispute
is very often parents are essentially vyingfor custody of their child and the ability
(02:12):
not just to have access with theirchild, but also to have the ability
to make decisions for the child andsometimes to make the final decision or the
sole decision for major matters affecting thechildren. And in a custody litigation,
one of the issues that people putbefore a court is their mental and physical
(02:36):
health, because the court really needsto determine what is in the best interest
of the children and who is inthe better position to make decisions for the
children and what access should be allottedto each of the parents, and which
of the parents should perhaps be theprimary custodian for the children, and all
(02:57):
of that centers sometimes around a already'smental and or physical health, although it
usually is their mental health that iscalled into question or dispute, as well
as addiction issues such as substance abuse, alcohol issues, and other substance abuse.
(03:20):
And so when someone is litigating custodyand a court has to determine best
interest, essentially, the court canlook at anything that is relevant, okay,
and so they can cool so thatyou wouldn't voluntarily raises it would be
your soon to be ex who's lookingto restrict your parenting time. We would
(03:43):
say, well, wait a minute. You know she has struggled a long
time with depression, and really youknow, there are days when she can't
even get out of bed, soyou know she's not going to be able
to get up in the morning andtake the kids to school. That that's
exactly right. It is usually yourx to be or your adversary in that
(04:05):
particular case, who is calling intoquestion your mental capacity or someone's mental capacity.
And so very often Almos. Asa matter of course, if there's
custody litigation and we know, forexample, that a spouse, a spouse
of our client has had mental healthissues that are significant, we will ask
(04:29):
for the mental health records. Wewill ask for their therapeutic records, for
any hospitalization records, for the notesfrom a doctor or a therapist, medications
prescribed by a psychiatrist, any ofthose. Those types of informational information documents
(04:51):
are subject to being discovered essentially,and so if there are suspicions that there
are mental health issues, we willask for that. And we have had
clients who are married to people whoare either have bipolar issues or may have
(05:12):
mood disorders such as or may haveanxiety issues, borderline personality disorders, and
we certainly delve into that as attorneys, because that does affect a parent's ability
not only to make decisions for theirchild, to have access with their child,
to be able to utilize information fromproviders for the children, but also
(05:40):
to co parent. If a parenthas, for example, a borderline personality
disorder, we often find that thatparent will have significant issues co parenting right,
and that does not actually lead toa situation where someone should have,
(06:00):
for example, joint legal custody versussomeone else who does not have that condition
having a soul or at least finaldecision making for the children. Right,
wow, I have so many questionsseth from that. So one of the
questions I have is, like yousaid, in discovery, you can ask
for all the mental health records inhistory and treatment notes. Does that if
(06:27):
you ask for that in discovery,does that become public informations? So it
doesn't become public information? And Ishould be careful about the word discovery.
So in custody matters in some statesand that would include New York, we
don't have something called discovery, sowe have to and when I say we
don't have it, we essentially willsubpoena records, etc. For a trial
(06:50):
in the matter, and we don'tnecessarily get those records ahead of time.
However, when there's mental health issues, sometimes a forensic psychologist or psychiatrist is
appointed to evaluate each of the party'smental health as well as to evaluate who
might be the parent in the betterposition to make decisions for the children and
(07:12):
how co parenting would work between theparents themselves. And so whether we actually
ask for the records and sometimes wedo. Many times we do, and
then we will get a subpoena soordered by a court with hippoforms, but
also a forensic psychologist who is conductingthe evaluation may also ask for those records
(07:33):
as part of the evaluation process.And so do I have a right to
say no, I don't want myrecords released, So you have the right
to say no, But you're nomay not be the final answer, because
the judge in that matter is goingto make a determination of whether these records
are relevant, whether they should beturned over, whether it is something that
(07:56):
the court should look at, whetherit is something that the attorneys for the
parties should look at, whether itshould be looked at by a forensic psychologist,
And how they will be essentially distributed, who will get to see them?
And you ask me specifically about whetherthey would be seen by the public,
So they won't necessarily be seen bythe public, because these records are
(08:18):
part of a divorce action and thoseare essentially closed records, but certainly they
can be seen sometimes buy your expouseto be and their attorneys, and they
can be entered into evidence in acourt at trial, and they can be
utilized in various ways during the litigation, including in motion practice, et cetera,
(08:39):
depending upon the restrictions that the courtputs on those records. Right,
so, potentially they could become publicknowledge. The answer is potentially, Yes,
potentially they could be but usually thecourt will set restrictions on how they
are to be distributed. So,for example, right, the court may
(09:01):
say the records can only be viewedin a lawyer's office and copies are not
to be made. Or the courtmay say that the records must be kept
in the courthouse and they will onlybe able to be viewed by the attorneys
in the courthouse, or you know, or they will be kept confidential,
(09:22):
but they will be entered in atrial, and so there may be testimony
about those records. So eventually itis highly likely that your spouse certainly will
be privy to the records as wellas their attorney if there is a trial
of the matter, because those recordswill come into evidence. Okay, So
if I was your client and Ihad a mental health history and it's my
(09:48):
soon BX who's looking to use thatin cool, what would be your advice
to me, Well, my advicewould be to be honest about your mental
health condition, because the court appreciateshonesty. The court also appreciates people who
are working to work on their mentalhealth conditions and working with therapists, and
(10:13):
so to be honest with the therapist, to be honest with the court,
to be forthcoming about the records.We have certainly seen in our practice,
and we represent people who have mentalhealth issues. Those people do get custody
of their children. It is notan impossibility for them to get custody,
(10:33):
or for them to get joint legalcustody, or for them to get fifty
percent access. But they need tobe consistent with their therapy. They need
to be consistent with the medications thatare being prescribed, to follow the directions
of the provider. So I wouldsay the most important thing from that we
tell our clients is that they needto actually follow the directions of the therapist.
(10:58):
It's the clients who won't follow thedirections, who essentially veer off course,
who don't go to the therapist,who don't treat their Egyptian issues,
for example, who try to hideout, who try to hide those those
issues. Those clients are going tohave the most difficulty in court in terms
(11:18):
of custody right, Because as Iwas doing this, I was thinking,
it's not this isn't really about themental health issue per se, but it's
more about assessing what is the riskto the children when they are in the
care of that person. That's exactlyright. So that is exactly right,
(11:43):
right. So it's about like,you know, if there is a risk
to the children's safety, then whatare the boundaries or the parameters that can
be put around there to protect thechild. So there are several different boundaries
and protections that they that can beput into place. So, for example,
we have constructed agreements whereby if someoneis seeing a psychiatrist and they and
(12:09):
there is a concern that someone willnot be taking medications or will not be
adhering to the advice of the provider, there can be blood testing, for
example, to make sure people aretaking the amount of medication they should be
taking, and we have actually putthat into agreements. We have also made
sure that people both spouses are ableto contact the treating the psychiatrist or psychologist
(12:33):
if they think that there is anissue, and that that treating psychiatrist or
a psychologist also is allowed to pursueinto the agreement, reach out to the
other parent if there is a concernthat someone is no longer following the advice
or taking the medication that has beenprescribed by the provider. And so those
(12:56):
types of safety guards are put intoplace in an agreement. And if you're
going to construct an agreement and youthink that your spouse has a mental health
issue, these are some of thethings that you can put into place.
There are also other things that wedo, such as supervised access where the
parent who may have the mental healthcondition and may not be being treated by
(13:22):
someone, or may not be cooperativein treatment, or the particular disorder may
not be as treatable as other disorders, that super supervised access may be more
appropriate for that particular parent with thechild until at least the child is able
to get to an age where there'sno safety concerns, right. So I
(13:43):
think it's just I just wanted tomake sure our listeners understood it wasn't a
This is not a black and whiteissue, and it's not an either or
it's not parenting or no parenting.It's about if there is a risk to
the child, thinking through the parametersthat can make parenting time safe for the
(14:05):
child. That's correct. This isnot about no parenting usually. I mean,
there are cases, and we haveseen them where people just will not
recognize that they have a particular disorderor a particular addiction, and there are
such safety concerns that even with supervisor'spresent, it just can't work. And
(14:30):
so that time may be extremely limitedand sometimes suspended until that person is actually
being treated or has gone into atreatment program, or has been hospitalized and
is able to conduct himself or herselfappropriately. But usually the concept is that
the person is in treatment, isfollowing the parameters by the provider, and
(14:56):
is trying to get help. Andaccess is a question of how much access,
under what conditions is the access andhow well co parenting actually take place?
Right right? Well, I've gotlots more questions for you, but
Lisa, we're going to take ashort break. Here. You're listening to
conversations about divorce. I'm Mandy Walker, and today we're talking about mental health
(15:20):
privacy in divorce. My guest todayis New York based family law and matrimonial
attorney Lisa's Vidaman. Lisa is themanaging partner with Miller's Vidamin and Whittaker and
Lisa's written about this topic in PsychologyToday. So I wanted to the question
that I had asked you before,was if I was your client and I
(15:43):
had the mental health issues, let'sturn the tables around a little bit and
let's say, you know, Ican see situations here where somebody's going to
try to use their spouse's mental healthcondition to use it against them and to
really try and maybe unfairly restrict parentingtime. And so if I was coming
(16:07):
to you and wanting to restrict mysoon to be excess access to our children,
are you able? How do youdetect when I'm motivated by wanting revenge
and control rather than a genuine concernfor the child's well being. So,
first of all, we speak toour clients, and we watch what our
(16:27):
clients or how our clients interact withthe other parents in terms of reading emails,
reading text messages. And I personallyfeel like I know what a client's
motives are probably after the first consultationthat I have with clients, right,
you know, some of it isjust experience, right, and we have
(16:49):
that kind of experience. That beingsaid, we're very cautious in terms of
making sure that our clients understand thatyou utalizing mental health against the other parent
is not going to necessarily help youknow, the person who's trying to essentially
(17:11):
use that against the other parent.The reason being is that the courts are
very feel, very strongly about thefact that a parent who is going to
be the custodial parent or the primaryparent, should be able to foster a
relationship with the other parent. Andif the motivation in essentially raising this issue
(17:36):
of mental health is not a concernbut for the children, but instead a
vindictive motivation, the court will usuallydetect that, and certainly during a forensic
evaluation with a psychologist or a psychiatristthat will likely come up as well.
And so we caution our clients tomake sure at all times, no matter
(17:56):
what the situation is, that theyare aftering a relationship with the other parent,
because they need to remember that theirchildren are products of both parents,
right and when they criticize or whenthey are vindictive to the other parent,
they are also in a sense beingvindictive to the children because those children are
(18:17):
made up of both parents. Andso it's very important that people realize that
no matter what the mental health situationsare or the physical limitations that these are
still the parents of these children.And to the extent that it is safe
and to the extent that it canbe done, the situation should be,
you know, a relationship should befostered by each of the parents for the
(18:40):
other parents, right. And Iknow, like in Colorado, we have
the best interests of the Child Statuteand part of that one of those factors
there is the ability of the parentsto foster the relationship with the other parent
with the child. So I absolutelyhear you on that that is one hundred
(19:00):
percent correct. And the Appellate Divisionin New York has has ruled many many
times that that is one of themost important essentially parts of the relationship between
the children and the parents that thecourt will look at. And so it's
it's very important that that that thatoccur and that parents do their very best
(19:22):
to do that to foster the relationshipbecause no matter what, these are their
parents, right. Um. So, when you're in this situation and your
advising clients, and I don't thinkthis question matters whether it's your client who
has the mental health issue or yourclients soon to BX that has it.
But how desirable is it to tryand negotiate the terms and the parameters of
(19:48):
the parenting plan between you and theother party, as opposed to letting a
judge decide, because I was sayingthat judges they don't know the family they
and they might not have a good, really good under signing of what the
mental health issues are. And itseems like there's a risk when you leave
it up to the judge to decide. So yeah, so I agree with
(20:11):
that. I think that parents whocan come up with their own parenting plan
with their lawyers, and who canessentially document and put together an agreement that
works for their individual family and theirindividual children, they are far better off
than leaving it to a court,because, as you say, the court
(20:33):
doesn't know these people. The courthas never really seen these people before they
walked into their courtroom, and itis very difficult for a court to put
together a delineated plan that is specificto each individual family, and so the
(20:55):
ability to for example, as Isaid to you earlier, you know,
I've had agreements which we've drafted whereone parent actually signs hipiforms for the other
parent and psychiatrists notify the other parentsif there's issues and blood tests are taken.
What's very complex for a court toput together that level of detail to
(21:15):
protect the children. So if youcan do it through your attorneys and put
together such a detailed agreement, thatyou're going to be far better off and
far better able to protect your children. That being said, sometimes it's just
impossible to do that, and thenyou need to be in court. It's
not always possible to negotiate every agreement, and we try very hard to do
(21:38):
that, but sometimes you need ajudge to structure the case and to make
a determination because the parents cannot cometogether and do that, particularly when there's
mental health issues, right, AndI would think in that situation, it's
really helpful for the judge to havea proposal from the parties for a very
(22:00):
detailed, delineated plan for how youwould cope with this issue, because that
then is giving the judge a foundationto work from. That's correct in fact
in New York, and I don'tknow if you have that in Colorado,
But in New York, we puttogether what's called a statement a proposed disposition,
which is a document that we giveto the court prior to a trial
which sets forth essentially what we wouldbe asking for the judge to order after
(22:26):
the trial, and that is essentiallythe roadmap of what we're asking for,
and we can put in all ofthis level of detail into the statement a
proposed disposition. But again, tosome degree, the court has to have
the authority to be able to dosome of the things that we're asking the
court to do, and it isa very difficult area for courts to get
(22:49):
into such a level of detail whenfrankly, there are so many people going
through the court system right well,so that kind of points to my next
questions, And just hearing you talkabout this and your knowledge about this topic,
that would tell me that it's it'sreally important for somebody who's in this,
(23:11):
for a parent who's in this situation, to get good legal representation,
and that this is not a situationwhere you could be doing this pro say
or without representation. I would saythat that's correct. Look, it is
my view that in matrimonial and familylaw that representing yourself, unless you absolutely
(23:33):
have to, it's probably not agood idea because emotions run very high,
and having someone who can advocate onyour behalf in a much more calm and
thoughtful manner is probably the best thingto do under all circumstances. However,
when there are mental health issues,I think it becomes even more important that
you have good counsel well. Andthe other thing you get there is not
(23:56):
only the knowledge of the legal system, but somebody coming to a legal counsel
like yourself. You you get somebodywho who has been through this and dealt
with this situation before, so thatthey can come up with a structured proposal
for how the parenting time would work. And I would think that that's a
(24:17):
key thing when you're looking for legalrepresentation is to ask the person have you
dealt with a situation involving X,y Z that is that is absolutely true.
It is very important that you retainexperienced counsel, counsel who has dealt
with mental health issues or egyptition issues. I'm surprised sometimes that people that there
(24:41):
are attorneys out there who haven't dealtwith, for example, egyptition issues,
and we've suggested certain techniques or certainways to deal with Egyptian issues. For
example, like there is and Idon't know if you have this in Colorado,
but there are things like Soberlink whereyou can do testing and someone can
blow into a tube that's connected toa computer and you can make sure that
(25:04):
somebody is sober. And there aretimes that we raise some of these issues
and counsel doesn't know necessarily what thisis. So it's very important that you
have counsel who has experienced in allthese different matters so that there can be
creative thinking happening and creative solutions tovery difficult problems. Right, And so
(25:26):
that gets back to I think onthe points that we were talking about earlier,
is that if you are the personwho's struggling with this is not to
be driven by your fear of losingcontact with your child or losing your parenting
time. But to start with thisis you need to start gathering information about
(25:47):
what are the solutions that are availableout there. That's correct, and I
think that you need to speak toyour therapist, you need to speak to
the psychiatrist. You need to makesure that you consult with several attorneys and
come up with an attorney who youreally think has your back, and you
(26:07):
need to research what the alternatives areand do you have any This is always
a hard question to ask, Lisa, but I hear it from so many
people that they don't have money topay for an attorney, and that's a
problem. I mean, particularly inNew York, it is definitely a problem.
(26:29):
There are services that people can goto, legal aid, for example,
but it is very difficult in NewYork if you don't have the money
to litigate or to negotiate your situation, and that is not easily solved.
Sometimes the non moneyed spouse will beable to ask for legal fees from the
(26:51):
moneyed spouse, and there is apresumption in New York that the moneyed spouse
should be paying legal fees for thenon moneyed spouse, and so attorneys will
make applications to the court for that. But if there's absolutely no money at
either side, then people have tolook for a source, and many times
(27:11):
that is where family members or friendscome into into play. We have many
clients unfortunately, who have have toreach out to family members to help them.
Right, there's a very difficult situation, or I think that that makes
a difficult situation even harder. Arethere some mental health issues that are more
(27:33):
concerning or challenging than others. Imean, you mentioned it earlier when you
talked about addiction issues, but alsoI think you said like bipolar and personality
disorders. So in my experience,the most difficult personality disorder has been borderline
personality disorders because from my experience,medication does not seem to treat. And
(28:00):
I've been told by therapists and psychiatristsand had forensic psychologists testify about this particular
issue that that is not something thatis necessarily treated by medication. So whereas
in a situation in terms of bipolarissues, you may be able to treat
with medication, it's much more difficultwith a borderline personality disorder. The other
(28:22):
thing that I've noticed in my practiceis that sometimes people will marry somebody with
a borderline personality disorder and not recognizeit because one of them. I guess
the symptoms of a borderline personality disorderis that the person is one for you.
When they are for you, andwhen you decide that you're getting divorced,
(28:44):
you may find that that person hasreally turned on you, and you
may discover something that you really didn'tsee before, because there's only this black
and white and no gray necessarily.And so we have seen that happen where
people were madly in love and thenit was ending, and then when it
ended, It really ended in sucha tumultuous way and unfortunately became just a
(29:11):
horrendous, horrendous situation because of thesepersonality disorders. Right, And there's that
there's a quote or a meme I'veseen on Facebook that says, you don't
know your spouse until you divorce them. So even under the best of circumstances,
but with mental health, like asyou said, with the borderline,
(29:32):
that's going to be so so true. Yes, I think that that's the
hardest. I mean, people willtell me that you know, they're divorcing
and narcissist, and narcissist will nevergive up. And you know, bipolar,
of course is um some mania componentsto it also, so there are
quite a few issues. But thefact is that, um, I think
(29:55):
that's the toughest. That's the onethat I've seen to be the toughest.
Well these so we are right upon time here. I'm wondering if you've
got one other piece of advice forsomebody who's in this situation that we may
not have covered. I think themost important advice and we may have covered
it, but I think the mostimportant thing is not to delay treatment,
(30:18):
not to decide you're not going toget your treatment because of fear that someone
may find out or it may affectyour custody. I think you the most
important thing is actually to recognize thatthere's an issue and then to deal with
that particular issue. And that iswhether it's you know, a mental illness
and addiction, whatever it is,recognize it, deal with it, own
(30:41):
it, and the court will usuallywork with you, as will your spouse
at the end of the day,because they won't really have a choice if
you're recognizing and treating it right.Well, Lisa, thank you so much
for that. That sounds like areally good solid advice and I can tell
it comes from years of experience.Thank you so much. Listen as we've
(31:03):
been talking about mental health, privacy, and divorce today and my guest is
Lisa's Iidaman. Lisa is a familylaw and matrimonial attorney. She's the managing
partner at Miller's, Ideman and Whittaker, and she's written about this topic extensively
and has been featured in Psychology Today. I think this is a difficult topic.
(31:25):
I guess what I want to sayabout this is to stay focused on
what is in the best interests ofyour child. Whether you're the person with
the mental health issue or it's yoursoon to be x, your child still
has an important attachment to them andto you, and this is about how
to provide parenting time while keeping yourchild safe. That means being realistic about
(31:47):
the specific mental health issue, gettingeducated about the issue, and learning about
the precautions and the protocols that canbe used to struct your parenting time so
parent and child can stay actively engaged. And staying actively engaged is usually in
the best interests of the child andwill help them help them grow up healthy
(32:07):
and well adapted despite the divorce.If you can negotiate an agreement outside of
court, I think it's always thebest option. Thank you for listening today.
If you hop over to my blogsince my Divorce dot com, you'll
find a synopsis of the show there, and you can follow me at Since
my Divorce on Twitter and on Facebook. And I hope you'll join us again
(32:29):
next time for more conversations about divorce.
Getting a divorce. Even thinking aboutgetting a divorce can be overwhelming, scary,
and sometimes exciting. Join divorce coachand mediator Mandy Walker for conversations about
divorce. The more you know,the easier it will be to make your
divorce healthier, less trustful, andto put it behind you. Here's Mandy.
(00:24):
Welcome to conversations about divorce. I'mMandy Walker, and today we're talking
about mental health, privacy and divorce. There has been and continues to be
an increasing push in our society totalk openly about and to accept and destigmatize
mental health issues. And that's agood thing. We're being encouraged to seek
(00:45):
help and treatment for our issues.When we do, we expect that treatment
to be confidential. There's a physicianpatient privilege that protects us. It encourages
us to be open and honest withour healthcare provider, and that in turn
lays the foundation for more effective treatment. But what if that privacy can be
(01:06):
broken? What if the fact thatwe've sought treatment can be used against us?
That is the reality in divorce.When one party is seeking restricted parenting,
you may find that the help thatyou saw years ago is now being
used against you, So what canyou do to prepare and protect yourself?
(01:26):
Well? My guest today is NewYork based family law and matrimonial attorney lisa's
Daman. Lisa is the managing partnerat Miller's, Idaman and Whitaker, and
Lisa's written about this topic in PsychologyToday. Welcome Lisa, Thank you so
much. I'm so happy to behere. I thought a good place for
(01:48):
us to start would be if youcould give us a brief overview of what
happens in a child custody dispute.That could lead to having to provide details
of your mental health treatment. So, what happens in a child custody dispute
is very often parents are essentially vyingfor custody of their child and the ability
(02:12):
not just to have access with theirchild, but also to have the ability
to make decisions for the child andsometimes to make the final decision or the
sole decision for major matters affecting thechildren. And in a custody litigation,
one of the issues that people putbefore a court is their mental and physical
(02:36):
health, because the court really needsto determine what is in the best interest
of the children and who is inthe better position to make decisions for the
children and what access should be allottedto each of the parents, and which
of the parents should perhaps be theprimary custodian for the children, and all
(02:57):
of that centers sometimes around a already'smental and or physical health, although it
usually is their mental health that iscalled into question or dispute, as well
as addiction issues such as substance abuse, alcohol issues, and other substance abuse.
(03:20):
And so when someone is litigating custodyand a court has to determine best
interest, essentially, the court canlook at anything that is relevant, okay,
and so they can cool so thatyou wouldn't voluntarily raises it would be
your soon to be ex who's lookingto restrict your parenting time. We would
(03:43):
say, well, wait a minute. You know she has struggled a long
time with depression, and really youknow, there are days when she can't
even get out of bed, soyou know she's not going to be able
to get up in the morning andtake the kids to school. That that's
exactly right. It is usually yourx to be or your adversary in that
(04:05):
particular case, who is calling intoquestion your mental capacity or someone's mental capacity.
And so very often Almos. Asa matter of course, if there's
custody litigation and we know, forexample, that a spouse, a spouse
of our client has had mental healthissues that are significant, we will ask
(04:29):
for the mental health records. Wewill ask for their therapeutic records, for
any hospitalization records, for the notesfrom a doctor or a therapist, medications
prescribed by a psychiatrist, any ofthose. Those types of informational information documents
(04:51):
are subject to being discovered essentially,and so if there are suspicions that there
are mental health issues, we willask for that. And we have had
clients who are married to people whoare either have bipolar issues or may have
(05:12):
mood disorders such as or may haveanxiety issues, borderline personality disorders, and
we certainly delve into that as attorneys, because that does affect a parent's ability
not only to make decisions for theirchild, to have access with their child,
to be able to utilize information fromproviders for the children, but also
(05:40):
to co parent. If a parenthas, for example, a borderline personality
disorder, we often find that thatparent will have significant issues co parenting right,
and that does not actually lead toa situation where someone should have,
(06:00):
for example, joint legal custody versussomeone else who does not have that condition
having a soul or at least finaldecision making for the children. Right,
wow, I have so many questionsseth from that. So one of the
questions I have is, like yousaid, in discovery, you can ask
for all the mental health records inhistory and treatment notes. Does that if
(06:27):
you ask for that in discovery,does that become public informations? So it
doesn't become public information? And Ishould be careful about the word discovery.
So in custody matters in some statesand that would include New York, we
don't have something called discovery, sowe have to and when I say we
don't have it, we essentially willsubpoena records, etc. For a trial
(06:50):
in the matter, and we don'tnecessarily get those records ahead of time.
However, when there's mental health issues, sometimes a forensic psychologist or psychiatrist is
appointed to evaluate each of the party'smental health as well as to evaluate who
might be the parent in the betterposition to make decisions for the children and
(07:12):
how co parenting would work between theparents themselves. And so whether we actually
ask for the records and sometimes wedo. Many times we do, and
then we will get a subpoena soordered by a court with hippoforms, but
also a forensic psychologist who is conductingthe evaluation may also ask for those records
(07:33):
as part of the evaluation process.And so do I have a right to
say no, I don't want myrecords released, So you have the right
to say no, But you're nomay not be the final answer, because
the judge in that matter is goingto make a determination of whether these records
are relevant, whether they should beturned over, whether it is something that
(07:56):
the court should look at, whetherit is something that the attorneys for the
parties should look at, whether itshould be looked at by a forensic psychologist,
And how they will be essentially distributed, who will get to see them?
And you ask me specifically about whetherthey would be seen by the public,
So they won't necessarily be seen bythe public, because these records are
(08:18):
part of a divorce action and thoseare essentially closed records, but certainly they
can be seen sometimes buy your expouseto be and their attorneys, and they
can be entered into evidence in acourt at trial, and they can be
utilized in various ways during the litigation, including in motion practice, et cetera,
(08:39):
depending upon the restrictions that the courtputs on those records. Right,
so, potentially they could become publicknowledge. The answer is potentially, Yes,
potentially they could be but usually thecourt will set restrictions on how they
are to be distributed. So,for example, right, the court may
(09:01):
say the records can only be viewedin a lawyer's office and copies are not
to be made. Or the courtmay say that the records must be kept
in the courthouse and they will onlybe able to be viewed by the attorneys
in the courthouse, or you know, or they will be kept confidential,
(09:22):
but they will be entered in atrial, and so there may be testimony
about those records. So eventually itis highly likely that your spouse certainly will
be privy to the records as wellas their attorney if there is a trial
of the matter, because those recordswill come into evidence. Okay, So
if I was your client and Ihad a mental health history and it's my
(09:48):
soon BX who's looking to use thatin cool, what would be your advice
to me, Well, my advicewould be to be honest about your mental
health condition, because the court appreciateshonesty. The court also appreciates people who
are working to work on their mentalhealth conditions and working with therapists, and
(10:13):
so to be honest with the therapist, to be honest with the court,
to be forthcoming about the records.We have certainly seen in our practice,
and we represent people who have mentalhealth issues. Those people do get custody
of their children. It is notan impossibility for them to get custody,
(10:33):
or for them to get joint legalcustody, or for them to get fifty
percent access. But they need tobe consistent with their therapy. They need
to be consistent with the medications thatare being prescribed, to follow the directions
of the provider. So I wouldsay the most important thing from that we
tell our clients is that they needto actually follow the directions of the therapist.
(10:58):
It's the clients who won't follow thedirections, who essentially veer off course,
who don't go to the therapist,who don't treat their Egyptian issues,
for example, who try to hideout, who try to hide those those
issues. Those clients are going tohave the most difficulty in court in terms
(11:18):
of custody right, Because as Iwas doing this, I was thinking,
it's not this isn't really about themental health issue per se, but it's
more about assessing what is the riskto the children when they are in the
care of that person. That's exactlyright. So that is exactly right,
(11:43):
right. So it's about like,you know, if there is a risk
to the children's safety, then whatare the boundaries or the parameters that can
be put around there to protect thechild. So there are several different boundaries
and protections that they that can beput into place. So, for example,
we have constructed agreements whereby if someoneis seeing a psychiatrist and they and
(12:09):
there is a concern that someone willnot be taking medications or will not be
adhering to the advice of the provider, there can be blood testing, for
example, to make sure people aretaking the amount of medication they should be
taking, and we have actually putthat into agreements. We have also made
sure that people both spouses are ableto contact the treating the psychiatrist or psychologist
(12:33):
if they think that there is anissue, and that that treating psychiatrist or
a psychologist also is allowed to pursueinto the agreement, reach out to the
other parent if there is a concernthat someone is no longer following the advice
or taking the medication that has beenprescribed by the provider. And so those
(12:56):
types of safety guards are put intoplace in an agreement. And if you're
going to construct an agreement and youthink that your spouse has a mental health
issue, these are some of thethings that you can put into place.
There are also other things that wedo, such as supervised access where the
parent who may have the mental healthcondition and may not be being treated by
(13:22):
someone, or may not be cooperativein treatment, or the particular disorder may
not be as treatable as other disorders, that super supervised access may be more
appropriate for that particular parent with thechild until at least the child is able
to get to an age where there'sno safety concerns, right. So I
(13:43):
think it's just I just wanted tomake sure our listeners understood it wasn't a
This is not a black and whiteissue, and it's not an either or
it's not parenting or no parenting.It's about if there is a risk to
the child, thinking through the parametersthat can make parenting time safe for the
(14:05):
child. That's correct. This isnot about no parenting usually. I mean,
there are cases, and we haveseen them where people just will not
recognize that they have a particular disorderor a particular addiction, and there are
such safety concerns that even with supervisor'spresent, it just can't work. And
(14:30):
so that time may be extremely limitedand sometimes suspended until that person is actually
being treated or has gone into atreatment program, or has been hospitalized and
is able to conduct himself or herselfappropriately. But usually the concept is that
the person is in treatment, isfollowing the parameters by the provider, and
(14:56):
is trying to get help. Andaccess is a question of how much access,
under what conditions is the access andhow well co parenting actually take place?
Right right? Well, I've gotlots more questions for you, but
Lisa, we're going to take ashort break. Here. You're listening to
conversations about divorce. I'm Mandy Walker, and today we're talking about mental health
(15:20):
privacy in divorce. My guest todayis New York based family law and matrimonial
attorney Lisa's Vidaman. Lisa is themanaging partner with Miller's Vidamin and Whittaker and
Lisa's written about this topic in PsychologyToday. So I wanted to the question
that I had asked you before,was if I was your client and I
(15:43):
had the mental health issues, let'sturn the tables around a little bit and
let's say, you know, Ican see situations here where somebody's going to
try to use their spouse's mental healthcondition to use it against them and to
really try and maybe unfairly restrict parentingtime. And so if I was coming
(16:07):
to you and wanting to restrict mysoon to be excess access to our children,
are you able? How do youdetect when I'm motivated by wanting revenge
and control rather than a genuine concernfor the child's well being. So,
first of all, we speak toour clients, and we watch what our
(16:27):
clients or how our clients interact withthe other parents in terms of reading emails,
reading text messages. And I personallyfeel like I know what a client's
motives are probably after the first consultationthat I have with clients, right,
you know, some of it isjust experience, right, and we have
(16:49):
that kind of experience. That beingsaid, we're very cautious in terms of
making sure that our clients understand thatyou utalizing mental health against the other parent
is not going to necessarily help youknow, the person who's trying to essentially
(17:11):
use that against the other parent.The reason being is that the courts are
very feel, very strongly about thefact that a parent who is going to
be the custodial parent or the primaryparent, should be able to foster a
relationship with the other parent. Andif the motivation in essentially raising this issue
(17:36):
of mental health is not a concernbut for the children, but instead a
vindictive motivation, the court will usuallydetect that, and certainly during a forensic
evaluation with a psychologist or a psychiatristthat will likely come up as well.
And so we caution our clients tomake sure at all times, no matter
(17:56):
what the situation is, that theyare aftering a relationship with the other parent,
because they need to remember that theirchildren are products of both parents,
right and when they criticize or whenthey are vindictive to the other parent,
they are also in a sense beingvindictive to the children because those children are
(18:17):
made up of both parents. Andso it's very important that people realize that
no matter what the mental health situationsare or the physical limitations that these are
still the parents of these children.And to the extent that it is safe
and to the extent that it canbe done, the situation should be,
you know, a relationship should befostered by each of the parents for the
(18:40):
other parents, right. And Iknow, like in Colorado, we have
the best interests of the Child Statuteand part of that one of those factors
there is the ability of the parentsto foster the relationship with the other parent
with the child. So I absolutelyhear you on that that is one hundred
(19:00):
percent correct. And the Appellate Divisionin New York has has ruled many many
times that that is one of themost important essentially parts of the relationship between
the children and the parents that thecourt will look at. And so it's
it's very important that that that thatoccur and that parents do their very best
(19:22):
to do that to foster the relationshipbecause no matter what, these are their
parents, right. Um. So, when you're in this situation and your
advising clients, and I don't thinkthis question matters whether it's your client who
has the mental health issue or yourclients soon to BX that has it.
But how desirable is it to tryand negotiate the terms and the parameters of
(19:48):
the parenting plan between you and theother party, as opposed to letting a
judge decide, because I was sayingthat judges they don't know the family they
and they might not have a good, really good under signing of what the
mental health issues are. And itseems like there's a risk when you leave
it up to the judge to decide. So yeah, so I agree with
(20:11):
that. I think that parents whocan come up with their own parenting plan
with their lawyers, and who canessentially document and put together an agreement that
works for their individual family and theirindividual children, they are far better off
than leaving it to a court,because, as you say, the court
(20:33):
doesn't know these people. The courthas never really seen these people before they
walked into their courtroom, and itis very difficult for a court to put
together a delineated plan that is specificto each individual family, and so the
(20:55):
ability to for example, as Isaid to you earlier, you know,
I've had agreements which we've drafted whereone parent actually signs hipiforms for the other
parent and psychiatrists notify the other parentsif there's issues and blood tests are taken.
What's very complex for a court toput together that level of detail to
(21:15):
protect the children. So if youcan do it through your attorneys and put
together such a detailed agreement, thatyou're going to be far better off and
far better able to protect your children. That being said, sometimes it's just
impossible to do that, and thenyou need to be in court. It's
not always possible to negotiate every agreement, and we try very hard to do
(21:38):
that, but sometimes you need ajudge to structure the case and to make
a determination because the parents cannot cometogether and do that, particularly when there's
mental health issues, right, AndI would think in that situation, it's
really helpful for the judge to havea proposal from the parties for a very
(22:00):
detailed, delineated plan for how youwould cope with this issue, because that
then is giving the judge a foundationto work from. That's correct in fact
in New York, and I don'tknow if you have that in Colorado,
But in New York, we puttogether what's called a statement a proposed disposition,
which is a document that we giveto the court prior to a trial
which sets forth essentially what we wouldbe asking for the judge to order after
(22:26):
the trial, and that is essentiallythe roadmap of what we're asking for,
and we can put in all ofthis level of detail into the statement a
proposed disposition. But again, tosome degree, the court has to have
the authority to be able to dosome of the things that we're asking the
court to do, and it isa very difficult area for courts to get
(22:49):
into such a level of detail whenfrankly, there are so many people going
through the court system right well,so that kind of points to my next
questions, And just hearing you talkabout this and your knowledge about this topic,
that would tell me that it's it'sreally important for somebody who's in this,
(23:11):
for a parent who's in this situation, to get good legal representation,
and that this is not a situationwhere you could be doing this pro say
or without representation. I would saythat that's correct. Look, it is
my view that in matrimonial and familylaw that representing yourself, unless you absolutely
(23:33):
have to, it's probably not agood idea because emotions run very high,
and having someone who can advocate onyour behalf in a much more calm and
thoughtful manner is probably the best thingto do under all circumstances. However,
when there are mental health issues,I think it becomes even more important that
you have good counsel well. Andthe other thing you get there is not
(23:56):
only the knowledge of the legal system, but somebody coming to a legal counsel
like yourself. You you get somebodywho who has been through this and dealt
with this situation before, so thatthey can come up with a structured proposal
for how the parenting time would work. And I would think that that's a
(24:17):
key thing when you're looking for legalrepresentation is to ask the person have you
dealt with a situation involving X,y Z that is that is absolutely true.
It is very important that you retainexperienced counsel, counsel who has dealt
with mental health issues or egyptition issues. I'm surprised sometimes that people that there
(24:41):
are attorneys out there who haven't dealtwith, for example, egyptition issues,
and we've suggested certain techniques or certainways to deal with Egyptian issues. For
example, like there is and Idon't know if you have this in Colorado,
but there are things like Soberlink whereyou can do testing and someone can
blow into a tube that's connected toa computer and you can make sure that
(25:04):
somebody is sober. And there aretimes that we raise some of these issues
and counsel doesn't know necessarily what thisis. So it's very important that you
have counsel who has experienced in allthese different matters so that there can be
creative thinking happening and creative solutions tovery difficult problems. Right, And so
(25:26):
that gets back to I think onthe points that we were talking about earlier,
is that if you are the personwho's struggling with this is not to
be driven by your fear of losingcontact with your child or losing your parenting
time. But to start with thisis you need to start gathering information about
(25:47):
what are the solutions that are availableout there. That's correct, and I
think that you need to speak toyour therapist, you need to speak to
the psychiatrist. You need to makesure that you consult with several attorneys and
come up with an attorney who youreally think has your back, and you
(26:07):
need to research what the alternatives areand do you have any This is always
a hard question to ask, Lisa, but I hear it from so many
people that they don't have money topay for an attorney, and that's a
problem. I mean, particularly inNew York, it is definitely a problem.
(26:29):
There are services that people can goto, legal aid, for example,
but it is very difficult in NewYork if you don't have the money
to litigate or to negotiate your situation, and that is not easily solved.
Sometimes the non moneyed spouse will beable to ask for legal fees from the
(26:51):
moneyed spouse, and there is apresumption in New York that the moneyed spouse
should be paying legal fees for thenon moneyed spouse, and so attorneys will
make applications to the court for that. But if there's absolutely no money at
either side, then people have tolook for a source, and many times
(27:11):
that is where family members or friendscome into into play. We have many
clients unfortunately, who have have toreach out to family members to help them.
Right, there's a very difficult situation, or I think that that makes
a difficult situation even harder. Arethere some mental health issues that are more
(27:33):
concerning or challenging than others. Imean, you mentioned it earlier when you
talked about addiction issues, but alsoI think you said like bipolar and personality
disorders. So in my experience,the most difficult personality disorder has been borderline
personality disorders because from my experience,medication does not seem to treat. And
(28:00):
I've been told by therapists and psychiatristsand had forensic psychologists testify about this particular
issue that that is not something thatis necessarily treated by medication. So whereas
in a situation in terms of bipolarissues, you may be able to treat
with medication, it's much more difficultwith a borderline personality disorder. The other
(28:22):
thing that I've noticed in my practiceis that sometimes people will marry somebody with
a borderline personality disorder and not recognizeit because one of them. I guess
the symptoms of a borderline personality disorderis that the person is one for you.
When they are for you, andwhen you decide that you're getting divorced,
(28:44):
you may find that that person hasreally turned on you, and you
may discover something that you really didn'tsee before, because there's only this black
and white and no gray necessarily.And so we have seen that happen where
people were madly in love and thenit was ending, and then when it
ended, It really ended in sucha tumultuous way and unfortunately became just a
(29:11):
horrendous, horrendous situation because of thesepersonality disorders. Right, And there's that
there's a quote or a meme I'veseen on Facebook that says, you don't
know your spouse until you divorce them. So even under the best of circumstances,
but with mental health, like asyou said, with the borderline,
(29:32):
that's going to be so so true. Yes, I think that that's the
hardest. I mean, people willtell me that you know, they're divorcing
and narcissist, and narcissist will nevergive up. And you know, bipolar,
of course is um some mania componentsto it also, so there are
quite a few issues. But thefact is that, um, I think
(29:55):
that's the toughest. That's the onethat I've seen to be the toughest.
Well these so we are right upon time here. I'm wondering if you've
got one other piece of advice forsomebody who's in this situation that we may
not have covered. I think themost important advice and we may have covered
it, but I think the mostimportant thing is not to delay treatment,
(30:18):
not to decide you're not going toget your treatment because of fear that someone
may find out or it may affectyour custody. I think you the most
important thing is actually to recognize thatthere's an issue and then to deal with
that particular issue. And that iswhether it's you know, a mental illness
and addiction, whatever it is,recognize it, deal with it, own
(30:41):
it, and the court will usuallywork with you, as will your spouse
at the end of the day,because they won't really have a choice if
you're recognizing and treating it right.Well, Lisa, thank you so much
for that. That sounds like areally good solid advice and I can tell
it comes from years of experience.Thank you so much. Listen as we've
(31:03):
been talking about mental health, privacy, and divorce today and my guest is
Lisa's Iidaman. Lisa is a familylaw and matrimonial attorney. She's the managing
partner at Miller's, Ideman and Whittaker, and she's written about this topic extensively
and has been featured in Psychology Today. I think this is a difficult topic.
(31:25):
I guess what I want to sayabout this is to stay focused on
what is in the best interests ofyour child. Whether you're the person with
the mental health issue or it's yoursoon to be x, your child still
has an important attachment to them andto you, and this is about how
to provide parenting time while keeping yourchild safe. That means being realistic about
(31:47):
the specific mental health issue, gettingeducated about the issue, and learning about
the precautions and the protocols that canbe used to struct your parenting time so
parent and child can stay actively engaged. And staying actively engaged is usually in
the best interests of the child andwill help them help them grow up healthy
(32:07):
and well adapted despite the divorce.If you can negotiate an agreement outside of
court, I think it's always thebest option. Thank you for listening today.
If you hop over to my blogsince my Divorce dot com, you'll
find a synopsis of the show there, and you can follow me at Since
my Divorce on Twitter and on Facebook. And I hope you'll join us again
(32:29):
next time for more conversations about divorce.
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