Kinsella v. Kinsella, 150 N.J. 276 (1997) (A-69/70-96; Decided July 10, 1997):

[This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.]

In this appeal, the Court addresses whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.

HELD:

1. Privileges are construed narrowly in favor of admitting relevant evidence. The Legislature based the psychologist-patient privilege on the attorney-client privilege. Under the three-part test established in In re Kozlov, in order to pierce the attorney-client privilege: 1) there must be a legitimate need for the evidence; 2) the evidence must be relevant and material to the issue before the court; and 3) by a fair preponderance of the evidence, the party must show that the information cannot be secured through any less intrusive source.

2. There is an implicit waiver of the attorney-client privilege where the plaintiff has placed “in issue” a communication that relates directly to the claim in controversy. In New Jersey, courts rely on the Kozlov three-part test to limit the waiver in scope to that which is necessary to serve the public interest according to the facts of the case. Where the party seeking disclosure makes a prima facie case for waiver, the court should review the evidence in camera before releasing it to ensure the privilege is pierced only to the extent necessary. New Jersey courts confronting the issue of the psychologist-patient privilege consistently apply these same principles developed in the context of the attorney-client privilege.

3. The Court need not determine whether an exception exists to the psychologist-patient privilege for communications made to the therapist at a time when the therapist was jointly employed by both parties because the communications at issue are protected by the marriage and family therapist privilege, N.J.R.E. 510. Under that rule, one party may not force disclosure of communications made by another party at a time when both parties were engaged in joint therapy.

4. When no statutory or other traditional exceptions to the psychologist-patient privilege apply, the court should not order disclosure of therapy records, even for in camera review, without a prima facie showing that the psychologist-patient privilege should be pierced under Kozlov’s three-part test. Mary fails to satisfy the third-prong of the test because evidence for proving allegations of spousal abuse is available from other sources. Therefore, Mary has not made a prima facie case for piercing the privilege sufficient to allow disclosure for the marital tort claims.

5. Based on the elements of proof required by the cause of action for extreme cruelty, and the function of that cause of action in New Jersey divorce law, specifically the subjective and liberal standard for proving extreme cruelty, piercing the psychologist-patient privilege should be permitted only rarely in order to enable a party to defend that cause of action.

6. In custody disputes, the primary concern is the best interests of the child. In respect of therapy records, courts must strike a balance between the need to protect the well-being of children and the compelling public policy of facilitating the treatment of parents’ psychological or emotional problems. Thus, the first source of information about the parents’ mental health should be independent experts appointed by the court or hired by the parties for the purpose of litigation. Only when the court perceives, after consideration of all the evidence, that the information gained from independent analysis is inadequate, should the court consider piercing the psychologist-patient privilege to compel disclosure of prior treatment records to the court and the parties. Before releasing the records, the court should conduct an in camera review, releasing only relevant and material information.

NOTE: My legal services include family law, divorce, child support, child custody and visitation, alimony, equitable distribution, midmarriage and marital agreements.

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