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Fitzgibbon v. Fitzgibbon

Decided: September 28, 1984.

PAMELA J. FITZGIBBON, PLAINTIFF,
v.
JAMES R. FITZGIBBON, DEFENDANT



Cooper, J.s.c.

Cooper

The matter comes before the court by way of motion by the husband seeking an order of the court compelling the court-appointed psychological expert to produce test data of both husband and wife, specifically the Minnesota Multiphase Personality Inventory Test, as well as the results of any other testing data utilized by him in rendering his report to the court.

The contemplated use of the report is to aid in the determination of the most appropriate parent to be designated custodian. Previously, a letter had been forwarded from the attorney for the husband, requesting production of this information. No authorization or informed consent of either husband or wife was attached thereto.

In addition, the husband requests the termination of the expert's services, while by the way of cross motion, the wife seeks his retention. The psychological report was presented to the court on the day of hearing and copies have been forwarded to the attorneys for the respective parties. The issue pertaining to the retention of the expert is resolved in favor of the cross complainant. Since the report has already been submitted, the removal of the expert at this point in time would be totally non-productive and only further hinder the resolution of the custody matter and is therefore not in the best interest of the child: See Brotman v. Brotman, 137 N.J. Eq. 514 (E. & A.1946); D. v. D., 108 N.J. Super. 149 (Ch.Div.1969); E. v. T., 124 N.J. Super. 535 (Ch.Div.1973); S. v. H.M., 111 N.J. Super. 553 (App.Div.1970); DiBiano v. DiBiano, 105 N.J. Super. 415 (App.Div.1969); Mayer v. Mayer, 150 N.J. Super. 556 (Ch.Div.1977).

To preserve and protect the child's welfare is the highest calling of the court, E. v. T., supra, 124 N.J. Super. at 540.

There remains for resolution the issue of whether the expert psychologist should be ordered to produce the test data. The expert had refused to do so, claiming the psychologist-patient(s) privilege, which he conceded could be waived, but only by the informed consent of the party should he or she desire. The psychologist-patients privilege was not recognized at common law. It was created by statute.

The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person. N.J.S.A. 45:14B-28, Evid.R. 26A-1.

This privilege has been equated not only with the attorney-clients privilege, as specifically set forth in the statute, but also as analogous to the physician-patients privilege. Rosegay v. Canter, 187 N.J. Super. 652 (Law Div.1982). However, it does not rise to the level of the marriage-counsellor privilege which is broader in scope, Wichansky v. Wichansky, 126 N.J. Super. 156 (Ch.Div.1973); Touma v. Touma, 140 N.J. Super. 544 (Ch.Div.1976). See also N.J.S.A. 45:8B-29, Evid.R. 28A-1.

The overriding principle, the polestar of all decisions, that the best interest of the child must govern in custody actions is axiomatic. See Brotman v. Brotman, supra, 137 N.J. Eq. at 514; D. v. D., supra, 108 N.J. Super. at 149; M. v. K., 186 N.J. Super. 363 (Ch.Div.1982).

To this ideology, which inherently decrees that when the information sought is relevant evidence which assists in coming to a proper determination of the custody issue, the welfare of the child being the paramount concern, the statutorily created privilege must defer, Callen v. Gill, 7 N.J. 312 (1951); D. v. D., supra, 108 N.J. Super. at 152. In this context, a privilege has been held to be constitutionally infirm, as a matter of due process. See State v. Roma, 140 N.J. Super. 582 (Law Div.1976),

where the court in considering the marriage-counsellor's privilege stated, ...


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