Alabama Restricts Waiver of Children's Psychotherapist-Patient Privilege in Child Custody Cases.

By Chandler Campbell

Introduction

Under the Federal Rules of Evidence 402, any evidence that is relevant to a court proceeding is admissible.^[1]However, relevant evidence can be excluded if it is subject to certain privileges.^[2] One such privilege that is recognized by the federal court system is the psychotherapist-patient privilege.^[3] This rule prevents “confidential communications between a licensed psychotherapist and [their] patients in the course of diagnosis or treatment” from being admitted unless the privilege is waived by the patient.^[4] Every state in the United States has their own version of the psychotherapist-patient privilege found either in the state’s common law evidence rules or in statutory provisions.^[5]Although the language is not universal or uniform, and every state has their own interpretation of this privilege, almost every state agrees on one thing: the psychotherapist-patient privilege of a minor in a child custody case can be waived on the child’s behalf, either by the court or the guardian ad litem appointed to the case, if it is in the child’s best interest.^[6]That is, every state agrees except Alabama.^[7]

Alabama’s Psychotherapist-Patient Privilege

Under Rule 503(b) of the Alabama Rules of Evidence, “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's mental or emotional condition.”^[8] This privilege can be asserted “by the patient, the patient’s guardian or conservator,” or the patient’s psychotherapist on the patient’s behalf.^[9] However, in child custody cases, this privilege is automatically waived for parents under Rule 503(d)(5)—regardless of whether the parent wants it to be or not—when “the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.”^[10]Twenty years ago, Alabama courts acknowledged that “[t]he children's mental state may also be at issue in a custody case.”^[11] Thus, it followed that when “a proper resolution of that issue requires disclosure of privileged communications, then the psychologist-patient privilege must yield.”^[12] Therefore, a child’s psychologist-patient privilege could be waived in a child custody case if that was in the best interest of the child.^[13]

According to Tonya Burleson, an Alabama attorney who has been practicing family law for three and a half decades, “[m]ental health providers cannot disclose [their] records without a protective order that is compliant” with the Health Insurance Portability and Accountability Act (HIPAA).^[14]  Moreover, “[m]ental health records have always been held to a higher standard than medical records as far as getting a HIPAA order.”^[15] Due to this elevated standard, an attorney must file a Motion for Qualified HIPAA Protective Order with the court to gain access to the parents’ mental health records in a custody case.^[16] Furthermore, the attorney must specifically allege within the motion that “1) the proceeding is a child custody case, 2) that allegations have been made related to the mental health of the patient, and 3) that the records sought are material and relevant to the issue of custody.”^[17] “Since the interests of the child supersede the patient’s privacy interests, the judges will routinely grant a Qualified HIPAA Protective Order, and that forces the mental health providers to disclose the records of the parents [despite] the privilege.”^[18] Until recently, “the minor child’s mental health records were treated the same way.”^[19] In the past, Alabama courts were very lenient in waiving this privilege. “If either parent requested a [Qualified] HIPAA [Protective] Order [for the child’s mental health records], that would be granted because it was a custody case, and the records were relevant to custody.”^[20] During this time, “the rationale seemed to be that the parents were allowed to give consent for [the] medical treatment or mental health treatment of the minor child; therefore, they were also allowed to indirectly consent to the waiver” of the child’s psychologist-patient privilege by the filing of the HIPAA motion.^[21]

That interpretation changed in 2016. The Alabama Court of Civil Appeals held in V.C.R. v. B.C. that while the parents of a child are considered parties to a custody case, the child himself is not a party to the case in which his own custody is being determined.^[22] Therefore, a child’s psychologist-patient privilege does not fall under the Rule 503(d)(5) exception, even if their mental health is relevant to the custody case.^[23] The Court reasoned that while “any person seeking custody has thereby placed his or her mental or emotional condition at issue,” the child has not.^[24] The Court also asserted that “the Advisory Committee's Notes [to Rule 503] also tend to refute any suggestion that the child's records should be disclosed because they may be relevant to the mental state of . . . the parties to the custody action.”^[25]Thus, under this new interpretation, a child’s parents in a custody case could no longer expect to gain access to the child’s mental health record by requesting a Qualified HIPAA Protective Order.^[26]

The Alabama Court of Appeals took this a step further in 2018. In certain circumstances, a guardian ad litem (GAL) may be appointed to a child custody case, either by the court if it feels one is necessary or upon the request of one or both of the parties.^[27] The purpose of a GAL is “to represent the best interests of a minor child or incapacitated adult during legal proceedings,” and they are “often an attorney or a professional with specialized training.”^[28] In Ex parteSims, a mother and a GAL jointly filed a “petition for a writ of mandamus” in the Alabama Court of Civil Appeals against the Madison Circuit Court.^[29] The mother and the GAL argued that the circuit court erred when it ruled “that it would ‘not allow a guardian ad litem to waive a minor's [psychologist-patient] privilege.’”^[30] In response, the Court of Appeals refused to grant the writ.^[31] The Court explained in its opinion that “[a] child, the child's parent, or the child's psychotherapist may assert the psychotherapist-patient privilege, but only the child may waive the privilege.”^[32]

What do these decisions mean for Alabama child custody cases? Well, attorney Tonya Burleson explains that for years she “routinely obtained mental health records of the parents and of the children.”^[33] In her opinion, the previous interpretation of the psychotherapist-patient privilege “was very easy, convenient, and really in the best interest of the child.”^[34] Allowing admission of the child’s mental health records often eliminated the need for the minor child to testify.^[35] Since “the child didn’t have to testify, it kept the child from being put in an awkward position, and it also shielded the child in certain ways from having a toxic parent blame the child directly for the outcome of the case.”^[36]Waiving the child’s psychotherapist-patient privilege and obtaining the child’s mental health records “was sometimes critical to winning custody cases, and in those circumstances, obtaining the records was critical to protecting the children from having to testify.”^[37] Now, the hands of attorneys in child custody cases are often “tied” since neither the court, the child’s parents, nor the guardian ad litem can waive the child’s privilege anymore.^[38] Although the courts are holding that the child is the only one who can consent to the waiver, “one wonders how [the child] could ever waive the privilege”^[39]  since “the child [traditionally] does not have the capacity to [do so] because the child is a minor.”^[40] Due to this problem, attorneys are more frequently forced to call the children to testify in court because there is no other way to adequately get the facts into evidence.^[41] Nevertheless, even that solution is sometimes blocked by judges, as some “resist allowing the children to be called to testify. They think it’s bad. They think it's traumatic” for the child.^[42] Thus, while the Alabama Civil Appeals Court appears to have changed the interpretation of Rule 503(d)(5) with the intention of protecting children, in practice, this change seems to actually lead to more harm to the children in the context of custody cases.^[43]

However, there is another way that attorneys can get evidence about a child’s mental health admitted besides calling the child to testify. Under Ala. R. Evid. 503(d)(2), “[i]f the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged . . . with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.”^[44] This rule gets around the party-only language of the child custody case exception.^[45] Nonetheless, it still poses problems for attorneys. In the opinion of attorney Burleson, mental examinations of a minor child prepared for purposes of litigation are not always as helpful or authentic as examinations that occur organically before a case is filed.^[46] Further, just as some judges “resist allowing the children to be called to testify,” others also “resist” a request asking the court to order a psychological examination of a child in a custody case.^[47] During my research, I could only find two cases that dealt specifically with this topic.^[48] In both cases, the Alabama Court of Appeals upheld a trial court’s denial of a party’s request for a court ordered mental health evaluation of the children.^[49] The Court of Appeals held that “[w]hether to grant a request for psychological evaluations is a matter which rests within the discretion of the trial court.”^[50] Thus, while attorneys in custody cases can pursue this alternative, it seems that it is often unsuccessful.^[51]

The Psychotherapist-Patient Privilege in Other States

Additionally, Alabama is almost the only state that has such a strict interpretation of the psychotherapist-patient privilege. Almost all the other forty-nine states have some mechanism in place to get the child’s mental health records in, and they do not limit the waiver only to the child.^[52] There are three main categories that the majority of states fall under. In the first category, states such as Louisiana and Mississippi have an automatic waiver in child custody or visitation proceedings of both a parent’s and child’s psychotherapist-patient privilege written directly into their laws in clear, plain language.^[53] About six states make up the second category. For these states, the child’s psychotherapist-patient privilege is not automatically waived in child custody cases, but it may be waived for them by either their parents, the guardian ad litem, or the court.^[54] Alabama fell into this category before the court changed its interpretation of the state’s version of the psychotherapist-patient privilege.^[55] The third category is the largest. Under this category, the court and guardian ad litem can waive or assert the child’s psychotherapist-patient privilege, but the child’s parents cannot.^[56]Most of the courts in these states are concerned that a parent will make decisions based on their own best interests, and not the best interests of the child, by arbitrarily waiving or asserting their child’s psychotherapist-patient privilege in ways that are advantageous to their side—at their child’s expense.^[57] Thus, these courts block parents from making this kind of decision, opting instead to allow either the court overseeing the proceeding or the guardian ad litem, who are unbiased third parties, to make the decision whether to waive or assert the privilege based on the child’s best interests.

Compared to Alabama, the state that has the next strictest interpretation of the psychotherapist-patient privilege is Kentucky.^[58] In Williams v. Williams, the Court of Appeals of Kentucky held that, in a child custody case, there is no automatic waiver of a child’s privilege, nor can a parent waive or assert the privilege on the child’s behalf.^[59]Furthermore, the Court quoted Commonwealth v. Barroso, a Kentucky Supreme Court case in which the Supreme Court narrowly construed a previous decision by the Court of Appeals “as simply ‘speculating, but not holding, that [a] trial judge or guardian ad litem could [assert or waive the psychiatrist-patient privilege] on behalf of [the] child.’”^[60] The Supreme Court in Barroso also held “that the psychiatrist-patient privilege ‘is not subject to avoidance because of a “need” for the evidence.’”^[61] Thus, the current standard in Kentucky for the waiver of a child’s psychiatrist-patient privilege is a bit unclear. Although Kentucky’s approach seems to be similar to Alabama’s interpretation, it does not completely close the door on a path to allow a waiver.

Conclusion

The current decisions of the Alabama Court of Appeals have made Alabama’s interpretation of the psychotherapist-patient privilege unlike that of almost every other state in the country. Moreover, they have essentially overturned years of precedent. Although there are alternatives to having the child waive their privilege, such as calling the child to testify at trial or having the court ordering a nonprivileged mental examination of the child, these options seem—for the most part—undesirable and less reliable routes for attorneys to take during custody cases.

^[1] Fed. R. Evid. 402.

^[2] Fed. R. Evid. 501.

^[3] Jaffee v. Redmond, 518 U.S. 1, 15 (1996).

^[4] Id. at 15 & n.14.

^[5] Ala. R. Evid. 503; Alaska R. Evid. 504; Ariz. Rev. Stat. §32-2085 (LexisNexis 2024); Ark. R. Evid. 503; Cal. Evid. Code § 1014 (Deering 2024); Colo. Rev. Stat. § 13-90-107 (2020); Conn. Gen. Stat. § 52-146c (2024); Del. R. Evid. 503; Fla. Stat. Ann. § 90.503 (LexisNexis 2023); Ga. Code Ann. § 24-5-501 (2024); Haw. Rev. Stat. Ann. § Rule-504.1 (LexisNexis 2025); Idaho R. Evid. 503; 735 Ill. Comp. Stat. Ann. 5/8-802 (LexisNexis 2024); Ind. Code Ann. § 25-33-1-17 (LexisNexis 2024); Iowa Code § 622.10 (2024); Kan. Stat. Ann. § 60-427 (2023); Ky. R. Evid. 507; La. Stat. Ann. § 37:2363 (2024); Me. Stat. tit. 32, §18393 (2024); Md. Code Ann., Cts. & Jud. Proc. § 9-109 (LexisNexis 2024); ALM G. Evid. § 503 (2025); Mich. Comp. Laws Serv. § 330.1750 (LexisNexis 2025); Minn. Stat. § 595.02 (2024); Miss. R. Evid. 503; Mo. Rev. Stat. § 337.636 (2024); Mont. Code Ann. § 26-1-807 (2024); Neb. Rev. Stat. Ann. § 38-3131 (LexisNexis 2024); Nev. Rev. Stat. Ann. § 49.209 (LexisNexis 2024); N.H. R. Evid. 503; N.J. R. Evid. 534; N.M. Stat. Ann. § 11-504 (LexisNexis 2022); N.Y. C.P.L.R. § 4507 (Consol. 2024); N.C. Gen. Stat. § 8-53.3 (2023); N.D. R. Evid. 503; Ohio Rev. Code Ann. § 4732.19 (LexisNexis 2023); Okla. Stat. tit. 12, § 2503 (2024); Or. Rev. Stat. § 40.230 (2023); 42 Pa. Cons. Stat. § 5944 (2024); R.I. Gen. Laws § 5-37.3-6 (2024); S.C. Code Ann. § 40-75-190 (2024); S.D. Codified Laws § 19-19-503 (2024); Tenn. Code Ann. § 24-1-207 (2024); Tex. R. Evid. 510; Utah R. Evid. 506; Vt. R. Evid. 503; Va. Code Ann. § 8.01-400.2 (2021); Wash. Rev. Code Ann. § 18.83.110 (LexisNexis 2024); W. Va. Code Ann. § 27-3-1 (LexisNexis 2024); Wis. Stat. § 905.04 (2024); Wyo. Stat. Ann. § 33-38-113 (2022).

^[6] Maine: Me. Stat. tit 34-B, § 1207 (2019); Mississippi: Miss. R. Evid. 503; Louisiana: La. Code Evid. Ann. art. 510 (2024); Idaho: Idaho R. Evid. 503

^[6] See L.A.N. v. L.M.B. (In re L.A.N.), 292 P.2d 942, 950 (Colo. 2013); Gil v. Gil, 829 A.2d 318, 331 (Conn. App. Ct. 2006); Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. Dist. Ct. App. 2018); PO v. JS, P.3d 50, 58–59 (Haw. Ct. App. 2016); Idaho R. Evid. 503; 740 Ill. Comp. Stat. Ann. 110/4 (LexisNexis 2024); Ind. Code Ann. § 25-33-1-17 (LexisNexis 2024); Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa 2009); La. Code Evid. Ann. art. 510 (2024); Sabnis v. Mohanty, No. 0788, 2023 Md. App. LEXIS 878, at 55 (Dec. 27, 2023); ALM G. Evid. § 503 (2025); Me. Stat. tit 34-B, § 1207 (2019); Dunn v. Dunn, No. A23-1591, 2024 Minn. App. Unpub. LEXIS 738, at 9 (Sep. 3, 2024); Miss. R. Evid. 503; Davis v. Smith (In re N.C.D), 455 P.3d 439, 439 (Mont. 2019); In re Berg, 886 A.2d 980, 984 (N.H. 2005); S.L. v. T.B., No. A-1568-22, 2025 N.J. Super. Unpub. LEXIS 143, at 21–22 (Super. Ct. App. Div. Jan. 28, 2025); Matter of Jonathan C., 28 N.Y.S.3d 764, 771 (N.Y. Fam. Ct. 2015); Sandberg v. Sandberg, No. 24 CV 004114-910, 2024 N.C. Trial Order LEXIS 2155, at 2–3 (Oct. 21, 2024); Ohio Rev. Code Ann. § 2317.02 (LexisNexis 2024); Ellison v. Ellison, 919 P.2d 1, 3 (Okla. 1996); Mouktabis v. Amarou, 499 P.3d 881, 886 (Or. Ct. App. 2021); S.C. Code Ann. § 44-22-100 (2024); Runyon v. Zacharias, 556 S.W.3d 732, 743, 45 (Tenn. Ct. App. 2018); Tex. R. Evid.509; UTAH CODE ANN. § 58-60-114 (2022); Va. Code Ann. § 20-124.6 (2024); David B. v. Stephanie C.S. (In re Emily C.B.), 677 N.W.2d 732, 732 (Wis. Ct. App. 2004); Loyning v. Potter, 553 P.3d 128, 133–34 (Wyo. 2024).

^[7] See generally V.C.R. v. B.C., 219 So. 3d 655, 657–58 (Ala. Civ. App. 2016) (holding that a child’s psychologist-patient privilege does not fall under Alabama’s Rule 503(d)(5) exception); see also Ex parte Sims, 246 So. 3d 155, 156 (Ala. Civ. App. 2017) (holding that no one except the child can waive the child’s psychologist-patient privilege).

^[8] Ala. R. Evid. 503(b).

^[9] Id.

^[10] Ala. R. Evid. 503(d)(5).

^[11] Mitchell v. Mitchell, 830 So. 2d 755, 759 (Ala. Civ. App. 2002) (citing Woodham v. Woodham, 539 So. 2d 293 (Ala. Civ. App. 1988)).

^[12] See id. at 758.

^[13] See id. at 759. The best interest of the child standard “refers to the court's process of deciding who is best fit to care for a child and what actions will benefit the child most.” Shea Drefs, Best Interest of the Child: What It Is & How to Prove It, Custody X Change (June 21, 2025), https://www.custodyxchange.com/topics/custody/legal-concepts/best-interest-of-child.php#jump. Using this standard, the court “looks at the child's needs and who is best suited to meet those needs.” Id.

^[14] Interview with Tonya Burleson, Attorney, The Burleson Firm, in Birmingham, Ala. (Sept. 29, 2025). I clerk for attorney Burleson’s law firm. She is my mother.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Id.

^[19] Id.

^[20] Interview with Tonya Burleson, Attorney, supra note 14.

^[21] Id. See Ala. Code § 12-13-1 (LexisNexis 2024) (“The parent or legal guardian of a minor who is at least 16 years of age and under 19 years of age may authorize medical treatment for any mental health services even if the minor has expressly refused such treatment services if the parent or legal guardian and a mental health professional determine that clinical intervention is necessary and appropriate.”)

^[22] V.C.R. v. B.C., 219 So. 3d 655, 657 (Ala. Civ. App. 2016).

^[23] Id. at 657–58.

^[24] Id. at 657.

^[25] Id. at 657–58.

^[26] Interview with Tonya Burleson, supra note 14.

^[27] Ala. Code § 26-2A-52 (LexisNexis 2024); What Does a Guardian ad Litem Do?, Legal Clarity (Jul. 19, 2025), https://legalclarity.org/what-does-a-guardian-ad-litem-do/.

^[28] Legal Clarity, supra note 27.

^[29] Ex parte Sims, 246 So. 3d 155, 156 (Ala. Civ. App. 2017).

^[30] Id. at 157.

^[31] Id. at 159.

^[32] Id. at 157 (emphasis added).

^[33] Interview with Tonya Burleson, supra note 14.

^[34] Id.

^[35] Id.

^[36] Id.

^[37] Id.

^[38] Id.

^[39] Donna Pate, Cir. Ct. Judge, Evidence from the Beach Presentation at Divorce on the Beach CLE, Family Law Association of Alabama 13 (June 2022) (conference handout publicly unavailable) (“While it is clear that a guardian ad litem for a minor can claim the privilege, it is not at all clear that a guardian ad litem can waive it. Given the disabilities traditionally associated with minority, one wonders how a minor could ever waive the privilege.”).

^[40] Interview with Tonya Burleson, supra note 14.

^[41] Id.

^[42] Id.

^[43] Id.

^[44] Ala. R. Evid. 503(d)(2).

^[45] See Ala. R. Evid. 503(d)(5).

^[46] Interview with Tonya Burleson, supra note 14.

^[47] Id.

^[48] Perry v. Perry, 460 So. 2d 1324, 1325 (Ala. Civ. App. 1984); Hoplamazian v. Hoplamazian, 740 So. 2d 1100, 1102 (Ala. Civ. App. 1999).

^[49] Perry, 460 So. 2d at 1325; Hoplamazian, 740 So. 2d at 1102.

^[50] Hoplamazian, 740 So. 2d at 1102 (quoting Crosslin v. Crosslin, 494 So. 2d 431, 433 (Ala. Civ. App. 1986)).

^[51] Interview with Tonya Burleson, supra note 14.

^[52] See infra notes 53–56 and accompanying text."

^[53] States that are in the first category include: Maine: Me. Stat. tit 34-B, § 1207 (2019); Mississippi: Miss. R. Evid. 503; Louisiana: La. Code Evid. Ann. art. 510 (2024); Idaho: Idaho R. Evid. 503

^[54] States that are in the second category include: Illinois: See, e.g., 740 Ill. Comp. Stat. Ann. 110/4 (LexisNexis 2024) (stating that a parent, guardian, or guardian ad litem who represents a child under 12 may access the child’s mental health records, and that a “parent or guardian [of a child who is at least 12 but under 18] who is denied access by either the recipient or the therapist may petition a court for access to the record”); Ohio: Ohio Rev. Code Ann. § 2317.02 (LexisNexis 2024) (stating that the psychologist-patient privilege is waived “[i]n any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action . . . if the patient or the guardian or other legal representative of the patient gives express consent”); Utah: Utah Code Ann. § 58-60-114 (2022); Virginia: Va. Code Ann. § 20-124.6 (2024); see also Sherfey v. Cushing, 103 Va. Cir. 285, 290–91 (Va. Cir. Ct. 2019) (explaining that parents shall not be denied access to mental health records, “[s]imply because the decision of a parent is not agreeable to a child, or because it involves risks,” unless it is determined by the court or child’s therapist to not be in the best interest of the child); Wisconsin: David B. v. Stephanie C.S. (In re Emily C.B.), 677 N.W.2d 732, 732 (Wis. Ct. App. 2004) (holding that a father waived his child’s psychotherapist-patient privilege by implication); Wyoming: Loyning v. Potter, 553 P.3d 128, 133–34 (Wyo. 2024) (“[T]he district court necessarily decided Father had the right to waive Child's privilege. . . . HIPAA does not support the district court's decision to exempt from disclosure under Father's subpoena Therapist's ‘treatment notes, interviews, notes of impressions, or process notes’ from treating Child.”).

^[55] See Mitchell v. Mitchell, 830 So. 2d 755, 758–59 (Ala. Civ. App. 2002).

^[56] States in the third category include: Colorado: L.A.N. v. L.M.B. (In re L.A.N.), 292 P.2d 942, 950 (Colo. 2013) (holding that, in a custody case, a parent cannot waive the child’s privilege, but the GAL can); Connecticut: Gil v. Gil, 829 A.2d 318, 331 (Conn. App. Ct. 2006) (holding that a GAL may waive or assert the child’s privilege, contrary to the child’s wishes, if it is in the child’s best interest); Florida: Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. Dist. Ct. App. 2018) (“Although ‘neither parent could have waived the psychotherapist privilege, because the subject matter of the litigation was the child's welfare’ . . . the guardian determined that it was in the child's best interest to waive the privilege.”); Hawaii: PO v. JS, P.3d 50, 58–59 (Haw. Ct. App. 2016) (holding that the parents of a child cannot waive or assert the child’s privilege, but a guardian ad litem may do so if the child is not mature enough to make the decision themselves); Indiana: see Ind. Code Ann. § 25-33-1-17 (LexisNexis 2024) (stating a psychotherapist may disclose mental health records “[i]f the psychologist has the expressed consent of the client or subject, or in the case of a client’s . . . disability, the express consent of the client’s legal representative”); Iowa: Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa 2009) (“[W]here a parent requests his or her child's mental health records when a mental health provider claims the release of such information is not in the child's best interest, the court must determine whether the records should be released applying the best-interest-of-the-child test.”);  Maryland: Sabnis v. Mohanty, No. 0788, 2023 Md. App. LEXIS 878, at 55 (Dec. 27, 2023) (ruling that “when a minor is too young to personally exercise the privilege of nondisclosure, the court must appoint a guardian to act, guided by what is in the best interests of the child”); Massachusetts: ALM G. Evid. § 503 (2025) (“If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the patient’s behalf under this section. A previously appointed guardian shall be authorized to so act.”); Minnesota: see Dunn v. Dunn, No. A23-1591, 2024 Minn. App. Unpub. LEXIS 738, at 9 (Sep. 3, 2024) (ruling that district court could waive or assert the child’s privilege if it was in their best interest); Montana: Davis v. Smith (In re N.C.D), 455 P.3d 439, 439 (Mont. 2019) (ruling that district court could waive or assert the child’s privilege if it was in their best interest); New Hampshire: In re Berg, 886 A.2d 980, 984 (N.H. 2005) (“[T]he superior court has the authority to determine whether it is in the best interests of a child involved in a custody dispute to have confidential and privileged therapy records revealed to his or her parents.”); New Jersey: S.L. v. T.B., No. A-1568-22, 2025 N.J. Super. Unpub. LEXIS 143, at 21–22 (Super. Ct. App. Div. Jan. 28, 2025) (“Only in the rare instance where a court determines that information gathered from other sources, including independent expert evaluations, is inadequate that the veil of psychologist-patient privilege should be pierced, and prior treatment records should be disclosed.”); New York: Matter of Jonathan C., 28 N.Y.S.3d 764, 771 (N.Y. Fam. Ct. 2015) (“[A] health care provider may disclose records protected by HIPAA if the subject of those records authorizes their release.”); North Carolina: Sandberg v. Sandberg, No. 24 CV 004114-910, 2024 N.C. Trial Order LEXIS 2155, at 2–3 (Oct. 21, 2024) (court ordering child’s mental health records be disclosed); Oklahoma: see Ellison v. Ellison, 919 P.2d 1, 3 (Okla. 1996); Oregon: Mouktabis v. Amarou, 499 P.3d 881, 886 (Or. Ct. App. 2021) (holding that “a court would clearly abuse its discretion in not appointing a guardian ad litem to act for and in the interest of” the child in a custody case); South Carolina: S.C. Code Ann. § 44-22-100 (2024) (stating that mental health records of a patient shall be disclosed when “(1) the individual identified or the individual’s guardian consents; [or] (2) a court directs that disclosure is necessary for the conduct of proceedings before the court and that failure to make the disclosure is contrary to public interest”); Tennessee: Runyon v. Zacharias, 556 S.W.3d 732, 743, 45 (Tenn. Ct. App. 2018) (holding that the GAL is authorized to waive privileges “if ‘the disclosure is impliedly authorized in order to carry out the representation’”); Texas: Tex. R. Evid. 509 (stating that “an attorney ad litem or guardian ad litem appointed for a minor” may waive the privilege by consenting to the waiver in writing).

^[57] L.A.N. v. L.M.B. (In re L.A.N.), 292 P.2d 942, 948 (Colo. 2013) (“The parent's interests as a party in a proceeding involving the child might give the parent incentive to strategically assert or waive the child's privilege in a way that could contravene the child's interest in maintaining the confidentiality of the patient-therapist relationship.”); Gil v. Gil, 829 A.2d 318, 331 (Conn. App. Ct. 2006) (“Neither parent could be relied on to communicate to the court the children's interests where those interests differed from his or her own. . . . A parent's judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife.”); PO v. JS, P.3d 50, 59 (Haw. Ct. App. 2016) (“We agree with the conclusion of the courts of other jurisdictions in that where the parents are involved in the litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf.”); Bond v. Bond, S.W.2d 558, 560 (Ky. Ct. App. 1994) (“[P]arents involved in a custody dispute should not be allowed to assert any privilege on behalf of their child simply because their interests are divergent from the child's interests.”); In re Berg, 886 A.2d 980, 985 (N.H. 2005) (“[W]hen custody of the child becomes the subject of a bitter contest between mother and father, the personal interests of the contestants in almost all cases obliterate that which is in the best interests of the child.”).

^[58] See Ala. R. Evid. 503; Ky. R. Evid. 507.

^[59] Williams v. Williams, 526 S.W.3d 108, 117 (Ky. Ct. App. 2017)

^[60] Id. (quoting Commonwealth v. Barroso, 122 S.W.3d 554, 565 (Ky. 2003)).

^[61] Id. (quoting Barroso, 122 S.W.3d at 558).