In custody disputes in Illinois, the Court can order an evaluation of the parties and children by a “Court’s Expert” who is to make recommendations on custody and parenting time with the child and each parent. Illinois also has a very strict mental health confidentiality law. The highest Court in Illinois held that these evaluations are NOT mental health services, meaning that the mental health confidentiality statute did not apply to these evaluations as the participants were not being provided with “mental health services”. However, the court went on to state that the Illinois Divorce Statute, specifically section 604(b) limits those reports to the parties, attorneys and court involved in the particular case.
Ms. Weil endured two divorce cases and in each case, there were custody evaluations by a Psychiatrist appointed by the court. In her second divorce case, the father of her child by the second marriage sought to obtain and introduce the report from her first divorce. Ms. Weil argued that the Illinois Mental Health and Developmental Disabilities Confidentiality statute mandated that such reports were confidential, and therefore could not be disclosed or used in her second divorce. Everyone and the court agreed to allow this case of first impression to be decided by the higher courts.
The specific question presented to the Illinois Supreme Court was: “Whether evaluations, communications, reports and information obtained pursuant to Section 750 ILCS 5/604(b) of the Illinois Marriage and Dissolution of Marriage Act are confidential under the Mental Health and Developmental Disabilities Confidentiality Act 740 ILCS 110/1 et. seq. where the 604(b) professional personnel to advise the court is a psychiatrist or other mental health professional.”
Johnston v. Weil did support the position of the trial and appellate courts that 604(b) reports are not discoverable from another case, even if they are not “confidential” under the terms of the Confidentiality Act. Specifically, the Supreme Court stated:
We agree with plaintiffs that section 604(b) of the Marriage Act, considered alone, requires disclosure of the 604(b) report only in the particular proceeding in which the advice is sought.
The Supreme Court noted that actually, §604(b) only allows disclosure to counsel, but then reminds us that §604, 605 and 606 should be read together and therefore expands the list of persons to whom such reports can be disclosed to:
…we conclude that section 604(b) confines disclosure of Dr. Amabile’s report to the court, counsel, and the parties in the McCann post-dissolution proceeding….
Some lawyers hold the belief that Johnston v. Weil holds that the custody evaluation reports have no limitations on who may obtain copies by discovery. When a specific question is asked of the court, only the answer to that question is resolved by the case. We know that custody evaluations are NOT held confidential under the Illinois confidentiality statute. Whether these reports will be limited to the persons noted above remains an open question at present.
Ms. Joy Feinberg has served as President of the Illinois Chapter of the American Academy of Matrimonial Lawyers, and is a frequent lecturer nationally for the Family Law Section of the American Bar Association. She has been consistently named one of Illinois’ “Leading Lawyers” in Family Law, and has been a member of the Divorce Magazine Advisory Board since 1999.