Are my medical records relevant in my divorce and/or custody case?

Posted on Nov 10, 2021 by Katie Carter

We all have medical histories. But, for some of us, the information contained in our medical records may be more damaging than what’s in others. I’ve always felt it was a little silly when they had me sign HIPPAA disclosures so that they could talk to my husband, my mother, or other family members about my procedures. But that’s not always the case.

For a lot of women, we’re dealing with treatment for mental illness, weight loss surgery, for illnesses related to addiction, or with any other ailments that would be either entirely too personal or too embarrassing or too uncomfortable to willingly have that information admitted into open court.

It’s really unsettling to feel like your soon-to-be ex husband or ex partner could use the legal system against you to the point that he would get your medical records admitted. It may feel like there’s no other purpose than to embarrass or humiliate you, or to show that you’re somehow unfit because of the medical conditions you’ve experienced.

Unfortunately, as we all know, there’s stigma associated with all sorts of legitimate medical issues. I can’t even begin to enumerate here all of the reasons or the specific conditions that you might prefer to keep out of your divorce and/or custody case – there’s just too many, and they’re too varied.

Are my medical records relevant in my divorce and/or custody case?


When I think of medical records, and wanting to know a party’s specific medical condition, two things spring to mind for me: child custody and spousal support.

It’s probably no surprise to anyone at all, but these are two of our most hotly contested issues in divorce and custody cases, and they’re areas where a person’s physical and mental health are relevant. In some cases, depending on the specific facts involved, medical records ARE sometimes admitted into evidence.

Keep in mind that, like everything else, what’s used in evidence is usually what’s gathered during the process of discovery. You can refuse to turn over your medical records, which means that your spouse or partner’s attorney would either have to file a motion to compel – where you could argue that the records are not relevant or that the prejudice would outweigh the benefit, or whatever – or have to subpoena the doctor’s office. You could try to block the subpoena – again, the same way, by arguing that the information wouldn’t help the litigation. Ultimately, it would be up to a judge to decide.

Sometimes, in cases like these where a person’s medical history is an issue, each side will call a doctor at the time of trial. The other side will have someone on their end who can testify that your illness or condition or prior history is bad for your case, and, similarly, we’ll find someone who can paint a more positive picture. If just one doctor is used – your doctor, in most cases – he’ll be questioned AND cross examined. If we call him as our own witness, we’ll ask him questions on direct examination, which means that opposing counsel will be limited on cross to what was discussed during direct. If opposing counsel calls him as their witness, we’ll still have the opportunity to cross examine the doctor for clarity.

What about my therapy records?

Therapy records are similar to medical records; at least, with respect to their admissibility. Most therapists, though, keep TERRIBLE records, for this specific reason. They don’t want their notes to be used against their client later on.

Therapists are fairly keenly aware of the stigma associated with mental illness, and they do try their best not to let that be used against their clients. Not all therapists are the same, of course, but this is a general principle I’ve found.

Why is my medical condition relevant in spousal support and/or child custody cases?

I’m not saying your medical condition is automatically relevant, just that it could be. And the reason why is because it relates directly to the factors.

Spousal Support

In Virginia Code § 20-107.1, there are specific factors that the court has to consider when it comes to whether or not to award spousal support. Factor number 4 is “[t]he age and physical and mental condition of the parties and any special circumstances of the family”.

That means that, when the court is looking at whether to award spousal support to you, they have to consider your condition – which all relates to your ultimate ability to work or provide any other kind of living for yourself outside of what you could have provided for you by way of spousal support. If you’re in such bad shape that there’s no other way that you could be provided for, it makes spousal support even more likely.

Child Custody

In child custody, medical records are also important, or can be, because we’re looking at whether each parent (or either parent, or both parents) are actually capable of caring for children. I used medical records in a child custody case with grandparents most recently, to show that the grandparents weren’t in strong enough physical shape to provide what the child needed moving forward.

In Virginia Code § 20-124.3, the second factor is the “age and physical and mental condition of each parent”.

There are reasons, of course, that we can keep medical records out. And, often, in discovery, a request for medical records is more of a fishing expedition – meaning, opposing counsel is looking for anything they can find to support their narrative – than a clear strategy that means that they intend to use your medical history against you.

Remember, though, that this works in reverse, too. Remember that you can object to this, that your attorney can work to keep this evidence out of court. Remember that you’re not without options.

It’s possible that your medical records are relevant, depending on the issues in your case. But it’s also possible that your medical history can be kept out or minimized during your ongoing family law case. Discuss your options with an attorney as soon as possible.

For more information or to schedule an appointment with an attorney, give our office a call at 757-425-5200.