More from the words of Jed Abraham
As to the questions about your medical history: normally, you’d be able to keep your medical records and your conversations with your doctors confidential. But, in a custody case, you put your physical fitness as a parent at issue, so the law removes your privilege of confidentiality. If your wife’s lawyer can convince the court that the medical fitness as a parent at issue in a custody case, that’s not enough for the law to remove your privilege of confidentiality. This law does not want to discourage people from confiding in their therapists, so it affords a higher protection to psychological confidences than to medical confidences. But if ever you testify about your mental fitness, you will be deemed to have waived your privilege, and your wife’s attorney will get an opportunity to convince the court that she should see your mental health records.
As to taking the Fifth, it’s not a good idea. The Fifth Amendment was to design to protect you when you are accused of a crime. You can’t be expected to testify against or incriminate yourself. But in a divorce case, when you are seeking some kind of advantage, you will not be allowed to claim that you are fit to have custody and then hide behind the Fifth when you are asked to prove it. If you try to get away with that, the court can hold it against you.
It used to be, under the common law, that husbands and wives were absolutely prohibited from testifying for or against each other. The law protected your marital relationship as privileged and confidential. It considered the sanctity of your marriage and your “domestic tranquility” to be more important than the court’s need for tattle at trial. That privilege has been whittled down, especially in divorce cases. Your conversations with your therapist may have greater protection than your conversations with your wife.
If you think the interrogatories are bad, wait till the deposition. You’re going to have to answer face-to-face questions. Of course, you can obstinate and simply refuse to answer anything. But, in return, the court can strike your petition for custody altogether. It won’t let you claim that you are a fit custodian and then let you refuse to divulge facts that might prove that you are not. That’s the trade-off you’re up against.
You will tell your lawyer that you don’t blame him for getting it all wrong, that the trade-off you’re up against is losing your dignity or losing your kids.
More on “When Your Wife Files For Divorce” on next summary.