Atwood v. Atwood
| Decision Date | 12 November 1976 |
| Parties | Barbara Jean ATWOOD (now Parrott), Appellant, v. Ronald Kennedy ATWOOD, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
C. David Emerson, Bradley & Emerson, Lexington, for appellant.
D. Frederick Saunders, Brown, Sledd & McCann, P. S. C., Lexington, for appellee.
The custody of the parties' children was changed from appellant to appellee by order of the Fayette Circuit Court, from which order this appeal is prosecuted.
The marriage of Barbara and Ronald was dissolved on September 21, 1973, and custody of their three children was awarded to Barbara. Subsequently, she married Dr. Norman Parrott, a widower with four children, from Paducah, Kentucky. Shortly after their marriage, domestic difficulties arose, and Barbara and her three children returned to Lexington, Kentucky, where the children were enrolled in the public schools. This separation was short-lived because Barbara and Dr. Parrott reconciled, and once again they were together in Paducah, with one difference the eldest of Barbara's children was left in Lexington with the child's father. However, in the fall of 1975 Barbara and Dr. Parrott again separated and Barbara returned to Lexington, where she filed a petition to dissolve her marriage.
On December 24, 1975, Dr. Parrott executed an affidavit, which was filed with the Judge of the McCracken County Quarterly Court, charging Barbara with being mentally ill and likely to cause injury to herself or others if not immediately restrained. The warrant was withdrawn, however, without any action having been taken thereon. During the time of and even before their first separation, Barbara, Dr. Parrott and his son, Steve, had been consulting regularly with two psychiatrists, Dr. R. Kelley and Dr. M. C. Glasgow. Dr. Kelley, in giving his deposition, among other things, said that he had seen Barbara in his professional capacity eight times since October 10, 1975. Dr. Glasgow treated Steve and, in the course of seeing him on social occasions at the doctor's home and also at the home of the Parrotts, had been around Barbara and Dr. Parrott.
On January 6, 1976, Barbara's first husband, the appellee herein, filed a motion in the Fayette Circuit Court asking that he be awarded custody of the children. He proposed to take the depositions of both Dr. Kelley and Dr. Glasgow, and appellant applied to the court for a protective order prohibiting the taking of these depositions on the grounds " * * * that both Dr. Kelley and Dr. Glasgow are psychiatrists who have seen the Respondent in their professional capacities as psychiatrists, and that any and all communications by and between the aforesaid psychiatrists and the Respondent are privileged under the provisions of KRS 421.215 (1966)." The court denied the motion. The depositions of the two psychiatrists were duly taken and were considered by the court in determining that the custody of the children should be taken from appellant and awarded to appellee.
The issue as stated in appellant's brief is:
"Did the Trial Court err in permitting the taking of depositions of two psychiatrists over the objection of the Appellant, based upon the psychiatrist-patient privilege, and in considering that testimony in arriving at its decision in a change of custody proceeding?"
In a memorandum of law which appellant filed with the chancellor, in speaking of Drs. Kelley and Glasgow, it is stated:
" * * * The two proposed witnesses are psychiatrists who were acting in their professional capacities as psychiatrists. * * * "
At common law there is no privilege existing between doctor and patient or psychiatrist and patient. 44 A.L.R.3d 24. The 1966 regular session of the General Assembly adopted the psychiatrist-patient privilege law, which has been codified as KRS 421.215. By the provisions of this statute, privileged communications between psychiatrist and patient exist with an absolute certainty except in three instances, to-wit:
"(a) When a psychiatrist, in the course of diagnosis or treatment of the patient, determines that the patient is in need of admission to or commitment to a hospital for care of the patient's mental illness;
(b) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychiatrist in the course of a psychiatric examination ordered by the court provided that such...
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