People ex rel. Chitty v. Fitzgerald
| Decision Date | 06 November 1963 |
| Citation | 244 N.Y.S.2d 441,40 Misc.2d 966 |
| Parties | PEOPLE ex rel. Vernon CHITTY, Petitioner, v. Catherine Chitti FITZGERALD, Respondent. |
| Court | New York Supreme Court |
Sanders Turner, New York City, for petitioner.
Kaplan & Zabronsky, New York City, for respondent.
This is a custody proceeding in which the respondent wife seeks to alter the visitation rights of the petitioner husband which had been granted to him by prior order of this court; respondent claiming that such visitation should either be denied or limited if it be determined from an examination of the record of the Veterans' Administration Hospital that the petitioner is presently mentally ill.
The husband has steadfastly refused to submit to psychological examination of his present mental condition and he has also asserted the patient-physician privilege forbidding disclosure of confidential communication of the hospital record under § 4504 CPLR (former section 352, Civil Practice Act). It is the husband's contention that the court may not, over his objection, read the record of his prior hospitalization for mental illness. Indeed, he has vigorously protested the entire procedure, claiming that it is the respondent's burden of proof to establish his present incompetency in order to modify or deny his continued right to visitation.
The precise question as to whether the court may disregard the patient-physician privilege in a custody proceeding does not appear to have been ruled upon by the courts of this state. There is, of course, ample authority indicative of the court's right to discover the mental condition of a party in a matrimonial matter. (Cook v. Cook, 8 A.D.2d 964, 190 N.Y.S.2d 955, Appellate Div. 2nd Dept.) Significantly, in a custody proceeding, it was intimated that even the full faith and credit clause of the United States Constitution does not prevent the court from exercising its duty for the protection of minor children. Thus, in enunciating the concept of parens patriae, the Court, in Bachman v. Mejias (1 N.Y.2d 575, at page 581, 154 N.Y.S.2d 903, at page 907, 136 N.E.2d 866, at page 869), held that this concept 'transcends the rule of comity' and that this rule must
Testimony by psychiatrists has repeatedly been received in custody proceedings (Matter of Reinhart v. Reinhart, 33 Misc.2d 80, 227 N.Y.S.2d 39; Anonymous v. Anonymous, 34 Misc.2d 444, 226 N.Y.S.2d 704; Application of...
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Proceeding for Support under Article 4 of the Family Court Act, Matter of
...justifies a denial of visitation); Becker v. Becker, 28 A.D.2d 1002, 284 N.Y.S.2d 25 (2nd Dept.) and P. ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 967, 244 N.Y.S.2d 441, 442 (Sup.Ct., Kings) (burden of proof on custodial parent). Visitation must be carefully protected, not only as a phas......
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Williams by Williams v. Roosevelt Hosp.
...to the physician-patient privilege, e.g., Matter of Allen (Mauceli), 24 Misc.2d 763, 204 N.Y.S.2d 876; People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441, are, therefore of questionable authority in light of the more recent Grand Jury Investigation, supra, Court of Appeal......
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Jacqueline F., Matter of
...honest purposes" (Coveney v. Tannahill, 1 Hill 33, 36) must yield to the best interests of the child. (Cf. People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441.) Accordingly, the order of the Appellate Division should be affirmed, without JONES, Judge (concurring). I agree ......
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Mississippi State Bd. of Psychological Examiners v. Hosford
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