The Illinois Supreme Court issued a major decision regarding the confidentiality of mental health treatment in 2011 when it decided the case of Johnston v. Weil. The Court needed to decide whether any part of a custody evaluation, performed by an appointed psychiatrist or psychologist, was confidential. In this blog, we will discuss custody evaluations and how the results of this case affect confidentiality in family law.

When Does the Court Issue a 604(b) Custody Evaluation?

According to local laws established by a majority of Illinois counties, couples going through a divorce or paternity case are usually required to try mediation first. If they can’t reach an agreement in mediation, the court may appoint a Guardian ad Litem (GAL) or child representative. A child representative is usually, but not always, another lawyer. The child representative will conduct an independent “investigation” and make their own recommendations to the Court. If this still does not resolve the custody dispute, a court may appoint a psychiatrist or psychologist to conduct an in-depth investigation of the parties and develop an opinion regarding the best interests of the minor child(ren).

A court’s power to order such an investigation is found in the Illinois Marriage and Dissolution of Marriage Act at Section 604(b). In family law, this practice is commonly referred to as a 604(b) evaluation or a custody evaluation.

What is a 604(b) Custody Evaluation?

The 604(b) evaluator is a licensed mental health professional appointed to be the expert witness for the underlying case. The 604(b) evaluator is “hired” by the court (although paid for by the parties) and is therefore supposed to be neutral. The 604(b) custody evaluation will include interviews with both of the parties, as well as with the children (unless age or other conditions prevent the same), possible observation of the interaction of the children with the parents as well as the parents with each other, as well as possible administration of mental health diagnostic tests.

How Does the Johnston v. Weil Ruling Impact Custody Evaluations?

The question addressed in Johnston v. Weil is whether or not the Illinois laws governing the confidentiality of mental health treatment applies to the interviews, testing, observations or any other materials generated by a 604(b) evaluator in a custody evaluation. The Illinois Mental Health and Developmental Disabilities Confidentiality Act, also known as the psychiatrist’s privilege, protects private information shared with mental health professionals, but does this right translate into custody evaluations?

The answer is no, it does not. The Court held that a 604(b) report and materials are not confidential and not covered by the Confidentiality Act. The Court decided that when courts appoint a 604(b) evaluator, it is clear that they are doing so for the specific purpose of making a custody evaluation and not for the purposes of providing any mental health treatment to either one of the parties. Because a court-ordered custody evaluation is not “treatment,” it is not considered confidential. However, any report generated is still considered confidential within the case, and it cannot be disclosed to third parties (anyone other than the lawyers, parties, etc.)

It is important for litigants in a divorce case to understand fully that any participation in a custody evaluation can potentially be disclosed by the evaluator in the context of the case, and to be fully informed as to their rights and responsibilities when mental health may be relevant in a family law case.

Sterk Family Law is Here to Help

If you or anyone you know is navigating a custody evaluation or other family law-related issues, they don’t need to go through it alone. The legal team at Sterk Family Law are here to guide you through the process. Set up your free consultation today to get started.