STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

A parent to whom a court has granted joint legal custody, but not physical custody, of a minor child may consent to the release of, and have access to, the minor child's mental health records under section 748(6) of the Mental Health Code, unless in the written judgment of the holder of the records the disclosure would be detrimental to the minor child or others.

Opinion No. 7149

February 20, 2004

Honorable Stephen Adamini
State Representative
The Capitol
Lansing, MI 48913

You have asked whether a parent to whom a court has granted joint legal custody, but not physical custody, of a minor child, may consent to the release of, and have access to, the minor child's mental health records under section 748(6) of the Mental Health Code.

Your question seeks clarification of OAG, 2001-2002, No 7092, p 58 (October 16, 2001), which addressed whether section 10 of the Child Custody Act of 1970¹ requires disclosure of a minor's mental health records to the child's noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code. That opinion, however, did not consider any distinctions between physical and legal custody in concluding that section 10 of the Child Custody Act does not require disclosure of a minor's mental health services records to the child's noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code. You advise that mental health treatment providers seek further guidance in situations where parents share joint legal custody, but not physical custody.

The Mental Health Code requires that records be maintained for recipients of mental health services and that the material in those records "shall be confidential to the extent it is made confidential by section 748." MCL 330.1746(1). Section 748(1) reiterates this confidentiality requirement and provides that the information may be disclosed "only in the circumstances and under the conditions set forth in this section or section 748a."²  MCL 330.1748(1). Section 748(6) of the Mental Health Code, which describes circumstances where confidential information may be disclosed, is the focus of your inquiry. Section 748(6) states:

Except as otherwise provided in subsection (4),^[3] if consent is obtained from the recipient, the recipient's guardian with authority to consent, the parent with legal custody of a minor recipient, or the court-appointed personal representative or executor of the estate of a deceased recipient, information made confidential by this section may be disclosed to all of the following:

(a) A provider of mental health services to the recipient.

(b) The recipient or his or her guardian or the parent of a minor recipient or another individual or agency unless in the written judgment of the holder the disclosure would be detrimental to the recipient or others. [MCL 330.1748(6); emphasis added.]

Thus, unless the holder of the record determines in writing that the disclosure would be detrimental to the recipient or others, section 748(6) authorizes disclosure of confidential information regarding a minor recipient if the parent with "legal custody" of the minor consents.

A cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Browder v Int'l Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). Meaning and effect must be given to every word and sentence of a statute, Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000), so as to produce, if possible, a harmonious result. Weems v Chrysler Corp, 448 Mich 679, 699-700; 533 NW2d 287 (1995). Thus, it becomes necessary to determine the meaning of "legal custody" by giving effect to both words used together.

Although the Mental Health Code does not define the term "legal custody," guidance as to its meaning is found in the Child Custody Act. "Joint custody" is provided for and defined in subsections (1) and (7) respectively of section 6a of the Child Custody Act, which state in pertinent part:

(1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody . . . . In other cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child . . . .

* * *

(7) As used in this section, "joint custody" means an order of the court in which 1 or both of the following is specified:

(a) That the child shall reside alternately for specific periods with each of the parents.

(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. [MCL 722.26a(1) and (7).]

In Wellman v Wellman, 203 Mich App 277, 279 (1994), the Court of Appeals analyzed this provision:

In substance, custody disputes between parents are governed by MCL 722.26a; MSA 25.312(6a). In particular, at the request of either parent, as here, the trial court "shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request." MCL 722.26a(1); MSA 25.312(6a)(1). As used in that section, the term "joint custody" means an order that specifies either that "the child shall reside alternately for specific periods with each of the parents," or that "the parents shall share decision-making authority as to the important decisions affecting the welfare of the child," or both. MCL 722.26a(7); MSA 25.312(6a)(7). The trial court must determine whether joint custody is in the best interest of the child by considering the factors enumerated in MCL 722.23; MSA 25.312(3), and by considering whether "the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child." MCL 722.26a(1)(a) and (b); MSA 25.312(6a)(1)(a) and (b).

The Court of Appeals went on to make a distinction between a grant of joint legal custody and a grant of physical custody under section 6a of the Child Custody Act:

Further, we are not convinced that it was inconsistent for the trial court to grant joint legal custody while denying joint physical custody. While the parties may have had prior disagreements over visitation, there was also evidence that it was in the children's best interests to maintain more contact with their father than one would normally expect if the mother had sole custody and the father had nothing more than visitation rights. [203 Mich App at 280.]

Thus, the type of joint custody defined in section 6a(7)(a) of the Child Custody Act, MCL 722.26a(7)(a), is generally referred to as joint physical custody. The type of joint custody defined in section 6a(7)(b) of the Child Custody Act is generally referred to as joint legal custody. Under the Child Custody Act, however, both types are referred to as "joint custody."⁴

Indeed, the Legislature has recognized the distinction between legal and physical custody in several other provisions of the Mental Health Code. See, e.g., MCL 330.748(5) (a parent "with legal and physical custody" of a minor recipient may consent to release of confidential records to an attorney for the recipient); MCL 330.1716(1)(c) (only a parent with "legal and physical custody" can consent to surgery); MCL 330.1717(1)(b) (only a parent with "legal and physical custody" can consent to electroconvulsive therapy).

Section 748(6) of the Mental Health Code authorizes disclosure of confidential information in a minor recipient's mental health records to a parent of the minor if the parent with "legal custody" of a minor gives consent and the disclosure would not be detrimental to the recipient or others according to the holder of the records. Significantly, in contrast to other sections of the Mental Health Code in which the Legislature has required both "legal and physical" custody, section 748(6) requires only "legal custody." Under the doctrine of statutory construction holding that the express mention in a statute of one thing implies the exclusion of other similar things,⁵ the Legislature's choice to require "legal" but not "physical" custody in section 748(6) must be given effect. Thus, a parent who has "legal" custody is authorized to consent to the release of his or her minor child's mental health records, regardless of whether he or she has physical custody.

This conclusion is also supported by sound public policy. A parent who is granted legal custody of a child "share[s] decision making authority as to the important decisions affecting the welfare of the child." MCL 722.26a(7)(b). Access to a minor child's mental health records may be critical in assuring that this decision-making authority is exercised knowledgably and in accordance with the best interests of the child.

It is my opinion, therefore, that a parent to whom a court has granted joint legal custody, but not physical custody, of a minor child may consent to the release of, and have access to, the minor child's mental health records under section 748(6) of the Mental Health Code, unless in the written judgment of the holder of the records the disclosure would be detrimental to the minor child or others.


MIKE COX
Attorney General

¹Section 10 of the Child Custody Act, MCL 722.30, provides: "Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child's custodial parent, unless the parent is prohibited from having access to the records or information by a protective order. . . ."

²Section 748a, MCL 330.1748a, deals with neglected and abused children and is not relevant to your question.

³Subsection 4 deals with adult recipients and is not relevant to your question.

⁴The legal forms approved by the State Court Administrative Office for use in matters involving the Friend of the Court also recognize a distinction between legal custody and physical custody. Form FOC 89, "ORDER REGARDING CUSTODY AND PARENTING TIME," identifies four different types of custody: 1) joint physical custody; 2) joint legal custody; 3) sole legal custody; or 4) sole physical custody. Form FOC 89 can be found at http://courts.michigan.gov/scao/courtforms/domesticrelations/custody-parentingtime/foc89.pdf.

⁵Michigan recognizes the principle of expressio unius est exclusio alterius. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971).