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Privileged Communications in Family Law Cases


Family law cases such as those involving divorce, child custody, and parental rights, often depend on facts on which only expert witnesses can elaborate. For example, child custody matters typically depend on the opinions and recommendations of a qualified custody evaluator.

Issues that implicate an evaluation of the parties’ physical and mental health will naturally call for the testimony of health professionals. There are several different lists of factors found throughout the California Family Code that courts are required to evaluate when determining specific issues, such as the child’s best interests regarding a custody arrangement, the needs of a party requesting spousal support, and the physical and mental capacity of a person in guardianship cases.

Common Evidentiary Privileges Applicable in Family Law Cases

Sections 930 through 1070 of the California Evidence Code govern the application of privileges in lawsuits and proceedings. An evidentiary privilege generally protects certain things from being admitted into evidence in a legal proceeding.

The following privileges are among those that frequently arise in California family law cases:

  • Privilege of a criminal defendant not to be called as a witness (Fifth Amendment)
  • Privilege of a person against self-incrimination (Fifth Amendment)
  • Lawyer-client privilege (Rule § 950 et seq.)
  • Confidential marital communications (Rule § 980 et seq.)
  • Physician-patient privilege (Rule § 990 et seq.)
  • Psychotherapist-patient privilege (Rule § 1010 et seq.)
  • Clergy-penitent privilege (Rule § 1030 et seq.)
  • Sexual assault counselor-victim privilege (Rule § 1035 et seq.)
  • Domestic violence counselor-victim privilege (Rule § 1037 et seq.)

Scope of Privileges

In general, the evidentiary privileges that often come up in family law cases usually pertain to a relationship where confidentiality plays a crucial role. For example, if the communications a spouse, patient, or client could be used as evidence against them in court, the efficacy of marriages, doctors, and attorneys would be impaired accordingly. That is because the purpose of those relationships and professions is subverted by the absence of open and honest communication.

The extent to which a privilege protects against the disclosure of information depends on the particular privilege in question. For instance, the attorney-client privilege generally protects confidential communications between a lawyer and their client concerning a legal matter for which the lawyer’s services were sought. However, in a legal dispute between spouses, attorney-client privilege does not protect communications a spouse made to their attorney who jointly represented both spouses.


Like most other rules, the California Rules of Evidence recognize certain situations where a particular evidentiary privilege is inapplicable. In general, a person may not assert an evidentiary privilege to protect against the admission confidential information for the purpose of furthering a crime or fraud or during litigation where both the privilege holder and keeper are opposing parties. For example, the confidential marital communications between spouses are not considered privileged in lawsuits between spouses.

In the context of family law litigation, a party must assert a specific privilege if they want to avoid disclosing something to the opposing party or court. If they successfully exercise a privilege, the party trying to elicit disclosure of the purported privileged communications must show that an exception or waiver applies.

Waiving Privilege

Information that otherwise qualifies as privileged may nevertheless be disclosed if the privilege-holder waived their right to exercise a particular privilege. Generally, a person waives privilege by acting in a manner contrary to how a person who wants to preserve privilege would act.

Determining whether a privilege was waived depends on several factors, such as:

  • Where a purported waiver was made
  • When a purported waiver was made
  • To whom the disclosure in question was made
  • Whether the privilege holder consented to the disclosure in question
  • Whether disclosure was voluntary

For Comprehensive Legal Representation, Consult Gille Kaye Law Group, PC

If you have additional questions or concerns about your rights and limitations regarding certain privileged information in a family law case, please feel free to reach out to one of our attorneys at Gille Kaye Law Group, PC.

Call us at (626) 340-0955 to arrange for an initial consultation about your family law dispute today.

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