## Facts

- John and Mary Kinsella, married in 1977, had two children and later entered contested divorce litigation.
- John sued for divorce on extreme cruelty grounds, seeking custody and alleging Mary’s verbal abuse, rage, and behavior affecting family relationships.
- Mary counterclaimed for divorce on extreme cruelty grounds and asserted a marital tort claim (assault, battery, and abuse), alleging John’s substance abuse and verbal and physical mistreatment.
- A court-appointed psychologist evaluated the parents and children for custody and visitation; John also had separate treating-therapist records.
- The trial court ordered both parties to authorize disclosure of all psychiatric/psychological/therapist records to opposing counsel.
- John sought interlocutory appellate review of the order compelling disclosure of his treatment records.
- The Appellate Division concluded that John’s extreme-cruelty claim effected a limited waiver for some purposes, but restricted disclosure and suggested custody issues could be addressed by less intrusive means.
- The New Jersey Supreme Court granted review to determine when the psychologist-patient privilege may block discovery of treatment records in (1) a marital tort claim, (2) an extreme-cruelty divorce claim, and (3) a custody/visitation dispute.

## Issues

1. Whether alleging extreme cruelty as a ground for divorce impliedly waives the psychologist-patient privilege as to psychotherapy records.
2. Whether, and under what standards, psychotherapy records may be discovered to litigate or defend a marital tort claim between spouses.
3. Whether, and under what standards, psychotherapy records may be discovered in custody/visitation litigation based on the child’s best interests.

## Decision

- The court affirmed in part, reversed in part, and remanded for application of a claim-specific, necessity-based framework.
- Pleading extreme cruelty did not, by itself, waive the psychologist-patient privilege.
- The privilege could not be pierced in custody/visitation disputes merely because parental fitness is contested; discovery is permitted only under stringent conditions.
- For marital tort claims, discovery could be allowed only on a demonstrated need and with narrow tailoring, typically using safeguards such as in camera review rather than wholesale disclosure.

## Legal Principles

- The psychologist-patient privilege is strong and is not displaced merely because confidential information may be relevant in family litigation.
- Implied waiver is not triggered solely by placing emotional effects at issue in an extreme-cruelty divorce claim; relevance alone is insufficient without demonstrated necessity.
- In custody and visitation disputes, courts should rely primarily on independent forensic evaluations and collateral evidence; access to therapy records is a last resort, justified only when critical to the child’s welfare and unavailable from less intrusive sources.
- In marital tort litigation, privileged records may be subject to limited disclosure only after a careful balancing of privacy interests against the need for evidence, with disclosure confined to what is necessary and often preceded by in camera review.

## Conclusion

The court rejected automatic or broad “in-issue” waiver of the psychologist-patient privilege in matrimonial litigation and required trial courts to use a claim-specific, necessity-driven balancing approach, limiting any disclosure of psychotherapy records to narrowly tailored portions needed to fairly litigate a marital tort claim or to protect children where other sources are inadequate.


Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (N.J. 1997)