In our family law practice, we frequently see the influence of substance abuse in dissolution of marriage cases. Sadly, many marriages would have a better chance at working and not ending in divorce were it not for substance abuse.
There are a number of issues with which divorcing spouses and their therapists must contend with before or during a divorce. Should a substance abuse impaired spouse in a divorce setting get treatment? How will a family court judge view a substance impaired individual who decides to go to treatment? Should the impaired individual’s mental health therapist testify in a family law court proceeding? How will treatment for substance abuse impinge on decisions of time sharing with children?
THE DECISION TO SEEK TREATMENT
Whether or not the substance impaired spouse contemplating divorce or in the midst of a divorce proceeding should seek treatment is best left to the joint counsel of the client’s therapist and attorney; however, it is generally a good idea to be guided by the notion of Safety First. If the spouse has lost the power of selfcontrol with respect to substances, or is a danger to himself or others, or lacks the sound judgment to know that what he is doing is not good, he should get help immediately. Of course, each case is unique and the impaired spouse should rely on the wise counsel of an attorney and a therapist with experience in family matters and substance abuse. If the impaired spouse is worried about whether or not seeking help will hurt him or her in the divorce case, the answer must be measured in the light of what happens if the person does not receive help. Hence, the controlling principle should always be Safety First. If a client is impaired as a result of abusing substances, the advice must always be to get help first regardless of the status of the marriage.
It is important that the client know that substance abuse treatment is protected under the law. An individual who has sought treatment or therapy for substance abuse has a right to expect confidentiality and non-disclosure of treatment records and all matters discussed during the course of treatment. There are strong and wise policy reasons behind confidentiality and non-disclosure. It is necessary to the rehabilitation of the substance abuse impaired individual that that person feels comfortable that what is said in therapy or treatment stays there and is not repeated in court. The law regarding access to a spouse’s treatment records is clear. Almost always, records of a spouse’s treatment or therapy are confidential, privileged and unavailable to the other spouse in a divorce or child custody/time sharing matter.
Confidentiality and non-disclosure are codified in various applicable laws. For instance, the Florida Evidence Code, F.S. 90.503(2), provides that a “patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist…”
The Marchman Act provides rights to individuals receiving substance abuse services, with a right to confidentiality of individual records. The records of service providers which pertain to the identity, diagnosis, and prognosis of and service provision to any individual are confidential in accordance with the Marchman Act and with applicable federal confidentiality regulation. Such records may not be disclosed without the written consent of the individual to whom they pertain except that appropriate disclosure may be made without such consent. These records are only obtainable upon a court order showing good cause for disclosure.
Moreover, the provisions of HIPPA (42 U.S.C.A. Section 290dd-2) provide that records of a substance abuse program are confidential and cannot be disclosed without express order of court “after application showing good cause”.
Therefore, in a family law case, when one spouse requests the treatment records of the other spouse, the requesting party has a terribly difficult burden to meet including overcoming the evidentiary privilege and the confidentiality provisions of Chapter 397, Florida Statutes, and 42 U.S.C.A. Section 290dd-2. It is a burden rarely, if ever, met.
SHOULD THE THERAPIST TESTIFY IN FAMILY LAW COURT
Many therapists know full well the value of the “therapeutic alliance” between client and therapist. The “therapeutic alliance” is that relationship of confidentiality and trust between the therapist and her client which encourages openness and candor in the clinical setting and sessions. A therapist who is asked to testify on behalf of a client should give serious consideration to the damage which will be done by testifying. Sometimes lawyers or the client will call the client’s therapist to testify as to the fitness as a parent. The evidentiary privilege is waived when the therapist testifies. Lawyers, clients and therapists need to jointly determine whether to interrupt the therapeutic alliance between the therapist and client by having the therapist testify which then permits inquiry into all matters discussed with the client in therapy. I never use the client’s therapist to testify unless there is no other possible way to get evidence of recovery and fitness before the court. The better practice is to not have the therapist testify and to have the client undergo a psychological evaluation by a forensic psychologist who is then able to testify as to the parent’s fitness.
BALANCING OF INTERESTS NECESSARY – CLIENT NOT NECESSARILY HARMED IN THE DIVORCE CASE IF SHE GOES TO TREATMENT
The spouse/parent/client must always be encouraged to go to treatment and recover from the addiction. If not, to do so, would result in a violation of the Safety First principle even if there is a pending or looming divorce case. If there is an addictive process, the individual’s safety and health should come first. The client should be assured that the act of going to treatment will not be used against them, whereas, if there is a significant substance abuse issue and there is no attempt at treatment, the court will take the untreated substance abuse into account when making its decisions. I try to get clients to take a long view and assure them that they will always have unsupervised time sharing and access to their children if they get help and keep clean and sober, but their access will be limited or supervised if they continue to abuse substances. The court always wants to protect the children and see the benefits of treatment to the children and the individual parent. An appellate court wisely wrote that: “As a matter of policy, we decline to affirm a result which, under the facts of this case, effectively penalizes an otherwise fit, competent parent for the commendable action of recognizing an addiction to prescription drugs, seeking assistance with, and successfully completing treatment for that problem. Wyatt v. Wyatt, 689 So.2d 1140 (Fla. App. 3 Dist. 1997)
And successful completion of treatment has served as the basis for a modification of restricted time sharing after a period of recovery. A father was able to get a custody decree modified where he presented evidence that he had recovered from his addiction to substances. The father had the testimony of two doctors licensed in mental health counselling and friends that he had not relapsed in his addiction and did not have problems with his supervised time sharing with the children. The Court ruled that the Father had proven a substantial and material change in circumstances and that a change from supervised to unsupervised time sharing was in the best interests of the children. The fact that dad went to treatment and then stayed clean and sober won the day for him in his efforts to get more time sharing with his children.
COURTS SLOWLY CATCHING UP WITH SCIENCE
Having indicated in this article that it is generally a good idea to get help when needed, we would be remiss in not pointing out that the law and the courts lag behind the science of addiction. The science of addiction and alcoholism informs us that it is a disease which involves an involuntary process. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, sets forth criteria forsubstance use disorders which are based on decades of research and clinical knowledge. Courts are being informed more and more about the science of addiction but there is still a great deal of work to do to educate judges and magistrates.
The law and the courts usually lag behind science and so there is a paucity of direction from the courts on how to factor substance abuse impairment into a decision regarding many aspects of a divorce case including time sharing, child support and awards of alimony.
Nevertheless, if there is an impending divorce and substance abuse is an issue, it is always advisable to seek treatment and to make a good faith effort to recover. Addiction is not a voluntary issue and the courts generally do not punish the addict but there should be attempts to recover.
If you have questions, feel free to send them to me at our email
Joe Considine has practiced law in South Florida since 1983. His
practice is limited to family law and addiction related law including
the Marchman Act. Joe works extensively with families whose loved
ones have substance abuse and mental health problems as an