When parents in Mid-Michigan counties around Ingham, Eaton, and Clinton share joint legal custody of a child, important medical, educational, and legal decisions must often be made together. One question that arises in Lansing-area custody disputes is: Does waiving HIPAA privilege to allow a third party access to a child’s medical records count as a joint legal custody decision?
HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects medical privacy. Under HIPAA, medical providers generally cannot release a person’s medical records without proper authorization. HIPAA applies only to medical providers and others that are specified in the federal law. It does not apply to the rest of us that might have medical information about others. Normally, before a provider releases private medical information, HIPAA requires a signed release from the person or, in the case of a child, their parent. In cases where there is a custody order for the child, which parent has the authority regarding the child’s medical records?
The Thames v Thames Decision
In Michigan, legal custody refers to decision-making authority regarding a child’s health, education, and welfare. Legal custody can be awarded solely to one parent or jointly to both parents. The Michigan Court of Appeals in Thames v Thames addressed an important point about confidentiality waivers in custody disputes. The court held that:
- Waiving a privilege is a significant decision affecting the child.
- The decision to waive privilege should not be made unilaterally by one parent when parents have joint legal custody.
- The decision to waive privilege must be unanimous or decided by court order.
Application in Michigan Courts
In counties such as Ingham (Lansing), Eaton (Charlotte), Clinton (St. Johns), Ionia, Jackson and Livingston (Howell), a common example of a dispute involving waiving HIPAA is where one parent wants to provide medical records to a therapist or school counselor. The other parent must agree in order for the privilege to be waived. If the other parent does not agree, then the issue must be decided by a judge. In the absence of an agreement, a judge will make a decision based on the child’s best interests. The main focus will be whether the disclosure is necessary for treatment, custody evaluations, or ensuring the child’s safety.
Why This Matters
Acting unilaterally to release or prevent the release of HIPAA-protected records without the other parent’s consent may constitute a violation of a joint custody order. Consequences of violating a custody order include:
- Motions to enforce or modify custody.
- Sanctions
- Increased litigation, court costs, and legal fees.
FAQs: HIPAA and Custody in Michigan
Q: What if I have sole legal custody?
A: If you have sole legal custody, you can generally make HIPAA authorization decisions without the other parent’s involvement.
Q: What if my ex refuses to sign a HIPAA waiver, but my child needs therapy?
A: Your attorney may file a motion with the circuit court in your county (e.g., Ingham County Circuit Court in Lansing) asking the judge to authorize disclosure.
Q: Does this rule apply only to therapy records?
A: No. It applies broadly to any records, including psychological, medical, and other privileged records.
Why You Need an Attorney
If you are dealing with a dispute about waiving HIPAA privilege, don’t handle it alone. Courts in Lansing, Charlotte, Howell, St. Johns, and throughout Mid-Michigan take confidentiality issues very seriously. One wrong move could jeopardize your custody case or your child’s privacy.
An experienced Michigan family law attorney can:
- Review your custody order to determine whether you have sole or joint authority.
- File motions to resolve disputes when parents disagree.
- Protect your child’s best interests in court.
Serving Families Across Mid-Michigan
Navigating custody disputes that involve HIPAA waivers, privileged records, and joint decision-making is not simple. At The Kronzek Firm, we have decades of experience handling complex disputes arising from custody orders. One of our experienced Michigan family law attorneys can review your custody order and advise you on whether you need the consent of your child’s other parent when waiving HIPAA. If you have to request a court order to waive the privilege, we can represent you and protect your and your child’s rights. Contact us today for a consultation.
📞 Our top rated attorneys have handled divorces and other family law issues for thousands of Michigan clients for more than 30 years.
You can reach our Lansing office 24/7 by calling (517) 886-1000 or by email at contactus@kronzek.law. Our team is also available 24/7 for emergency consultations.
In addition, during normal business hours only, you also can text us at (517) 886-1000.
[Disclaimer: This content is for informational purposes only and does not constitute legal advice. Consult an attorney for personalized guidance.]