Contested Nevada divorces — particularly those involving child custody disputes — frequently generate disputes over mental health records. A spouse who has received therapy, psychiatric treatment, or substance abuse counseling may find their treatment records targeted by a subpoena from the other spouse’s attorney seeking evidence of mental health conditions, diagnoses, or statements made in therapy that could affect the custody analysis. Conversely, a spouse may attempt to use the other parent’s decision to seek mental health treatment against them in custody proceedings, creating a chilling effect on beneficial mental health care. Nevada law provides significant protection for therapy records through the psychotherapist-patient privilege, but that privilege is not absolute in family court proceedings. Hauser Family Law advises Las Vegas clients on protecting confidential mental health records in divorce and custody proceedings.
Nevada Psychotherapist Privilege, Waiver, and the In-Camera Review Process
Nevada’s psychotherapist-patient privilege is codified at NRS 49.215 et seq. and protects confidential communications between a patient and their psychotherapist — which includes licensed psychiatrists, psychologists, licensed clinical social workers, licensed professional counselors, and licensed marriage and family therapists. The privilege belongs to the patient, who controls whether to assert or waive it. A patient waives the privilege by voluntarily disclosing privileged communications (such as discussing their therapy content in deposition or in a declaration filed with the court), or by placing their mental health condition directly at issue in the litigation — which is what occurs when a party claims their own mental health fitness as a factor supporting their custody position or challenges the other parent’s mental health as a custody issue. In custody disputes, the exception at NRS 49.245(3) allows disclosure of psychotherapist communications when the court determines they are relevant to the patient’s mental condition and the mental condition is at issue in the proceeding. Nevada courts typically use an in-camera review process: the party seeking the records subpoenas them to the court rather than directly to opposing counsel; the judge reviews the records privately to determine whether they contain information relevant to the custody dispute; and only relevant records are disclosed to the requesting party. This in-camera process protects irrelevant personal therapy content from unnecessary disclosure while allowing the court to access genuinely relevant information. Seeking mental health treatment during a contested divorce or custody case does not, by itself, create a basis for disclosing those records — the other party must establish that the patient’s mental health condition is directly at issue. Hauser Family Law advocates for the protection of mental health privacy in Las Vegas custody proceedings while ensuring that relevant information is appropriately presented when it supports our clients’ custody positions.