Simek

The issue we confront is whether a parent who has been awarded physical custody of minor children in a marital dissolution proceeding may compel disclosure of records otherwise protected by the statutory psychotherapist-patient privilege (Evid. Code, § 1014) and by the physician-patient privilege (Evid. Code, § 994) in order to demonstrate that her former spouse suffers from emotional instability of such a nature that he should not be allowed visitation rights. In the circumstances of this case our answer is negative, for the reasons which follow.

Background of the Case. Charles Simek, the petitioner in this proceeding, is the respondent in a dissolution proceeding brought by his wife Linda. During the hearing in August 1979 on the petition for dissolution, the court indicated that Linda was to have custody of their two children, Michelle, age eleven, and Allison, age six; and it directed that the parties were to work out a visitation schedule to be submitted to the court for its approval. If no agreement was reached, the matter was to be referred to the probation department.

By November 1979 the parties were unable to reach agreement, and the court ordered the…