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Can I Refuse to Answer Questions About My Mental Health During a Divorce Proceeding Involving Child Custody?

Can I Refuse to Answer Questions About My Mental Health During a Divorce Proceeding Involving Child Custody?

All sorts of allegations are made during a highly contested child-custody case. A couple examples of allegations could include the following sentences: Mother has post-partum depression and cannot properly care for the child(ren) and should not be awarded primary physical custody. Father is a narcissist and cannot possibly co-parent and Mother should be awarded custody. The list of potential allegations is endless.

This type of contention typically arises in one (1) of two (2) contexts. The first is discovery; and the second is at the divorce preliminary hearing and/or final hearing. Discovery is the process of obtaining information from a party, typically through a deposition or interrogatories (written questions sent to a party).1 This blog covers how mental health is relevant to and plays into divorce proceedings involving custody.

The place to start is with three (3) controlling rules. The first is the Divorce Act itself. Under Divorce Act, in deciding how to award physical custody, the trial court must consider, among other things, . . . “(6) [t]he mental health of all individuals involved . . .”2 Second, discovery can gather information about any topic that is “. . . reasonably calculated to lead to the discovery of admissible evidence.”3 Mental health records are thus included within the scope of this rule. Third, under the Indiana Rule of Evidence, during trial “. . . .no person has a privilege . . .to refuse to disclose any matter . . ..” unless it is protected by the “. . .constitution, statute, any rules promulgated by the Indiana Supreme Court, or common law . . ..”4 This evidentiary rule only applies to relevant evidence.5 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”6 Thus, mental health status is probably relevant, and a witness must testify to the same in a custody trial.

Should a parent refuse to testify about his or her mental health? The court could address this in several ways. The court could award sole physical custody to the other parent and order supervised visitation to the refusing parent pending psychological evaluation. Also, it could find the parent in contempt for such refusal. In any case, the other parent will probably prevail in obtaining sole physical custody. With this noted, the evidence must be relevant to the custody determination. There are several ways it might not be relevant. Take the example of a parent who was briefly treated for depression as a teenager. If this treatment resolved the mental health issue—and the other parent knows it—it is likely to be subject to objection and sustained (you would not have to answer the question), particularly if the parents had children later in life.

Is all hope lost if that is not the case and the parent is currently receiving mental health treatment? No. Hardly. However, a party will have to work with his or her attorney to determine how to address this issue—which is certain to come up at trial. This can be done in many ways. For instance, if the litigant is compliant with treatment and the condition has no impact on daily parenting, this issue may be effectively summarily addressed by an expert or physician. If that is not the case, there is still the fundamental of parents to raise their children and the court will craft an order in consideration of such. For instance, the court could award the parent sole physical custody, or joint custody, and set quarterly compliance checks to ensure the parent is managed with his or her mental health condition.

The point behind all of this is that mental health is considered greatly by the court. If this is an issue, it must be fully disclosed to the attorney and course of action determined to address this properly in court. Most “skeletons” can be properly addressed if properly planned for. However, even the best domestic attorneys have been blind-sided by learning of mental issues or other substantial issues (relative to the custody determination the court must make) for the first time at the final hearing—it is likely too late to do any damage control by that time. You hired your attorney to serve you to help you work toward your legal goal. If there is not fundamental trust between attorney and client, the case may be lost before ever entering the courtroom.

This blog post was written by attorneys at Ciyou & Associates, P.C. The objective is to make you an educated litigant in divorce cases where mental health is at issue. If this blog is helpful, it has met its legal objective. This blog is not intended to be relied on in any given legal case. It is not legal advice. It is an advertisement.


  1. There are many ways to protect sensitive mental information from becoming a part of the public record under the Indiana Rules of Trial Procedure, such as an in camera interview of the records by the judge or a discovery protective order under Indiana Rule of Trial Procedure 26.
  2. Indiana Code section 31-17-2-8(6).
  3. Indiana Rule of Trial Procedure 26(B)(1).
  4. Indiana Rule of Evidence 501(a)(2).
  5. There is no such privilege or otherwise. Many litigants believe this is “protected health information” under HIPAA; it is not.
  6. Indiana Rule of Evidence 401.
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