No waiver of child’s psychotherapy-patient privilege and court’s interview of children – Ky Court of Appeals published opinion



Due to Father’s history of sexual abuse, he was denied visitation with his minor children. After three years without contact, he filed a motion asking for visitation. After the court interviewed the children and reviewed their counseling records, pursuant to agreement of the parties, it entered an order denying Father’s motion. Father appealed.

Father argues that court erred in not releasing the children’s counseling records to counsel and the parties. “Prohibiting a parent from asserting his child’s privilege is not equivalent to automatically waiving the child’s privilege.” The trial court, using the holding in Barroso, a criminal case, found that neither the exceptions set forth in KRS 421.215 nor KRE 507 applied and therefore the children’s counseling records were privileged. The Court of Appeals agrees looking to past precedent comparing the cases of Bond, Atwood, and Barroso holding the trial court did not err in applying Barroso. In a lengthy discussion clarifying past precedent the Court of Appeals notes that “the patient’s right to rely on the promise of confidentiality remains intact despite the patient – the child – being made a pawn in the courtroom” and clarifying that there is no “automatic waiver” as to any claim of privilege by the children in a custody dispute.

Father also argues that the court erred in interviewing the children. The Court of Appeals, noting an agreed order giving the Judge substantial discretion in how to conduct the interviews, held that the court did not err in the manner in which it interviewed the children. Therefore, the order of the trial court denying Father’s motion to modify visitation was affirmed.

Digested by Elizabeth M Howell

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