Laznovsky v. Laznovsky

CATHELL, Judge. Petitioner, Christa Laznovsky, asks us to review a decision of the Court of Special Appeals that vacated an order of the Circuit Court for Talbot County awarding her custody of the ⁵⁸⁸ minor children of her and respondent, Frank Laznovsky. She presents two questions: 1. Does a party seeking an award of sole custody place their mental health at issue, so as to require the disclosure of privileged mental health records? 2.

Did the Court of Special Appeals err in requiring the disclosure of wife’s privileged mental health records? I. Facts The parties were married in 1985. They resided in New York for two years, then moved to Talbot County in 1987. Petitioner was, at the time of the marriage, a paralegal; respondent was then, and is now, an attorney.

At the time of their marriage, petitioner had a history of psychiatric treatment. Shortly after the start of their marriage, petitioner, at respondent’s request, continued in psychiatric treatment. In 1990, the parties had a son. They separated in 1991, reconciled in 1993, and in that year had another son.

During the summer and fall of 1994, both parties saw a psychiatrist jointly, Dr. Richard Greenbaum. They separated again in 1995, with respondent moving to Baltimore and living with his secretary and petitioner remaining in the Talbot County home with the children. At the time of their 1995 separation, they prepared and executed an agreement that, as relevant here, provided for joint guardianship, care and custody of the children, but with petitioner to have primary residential care of the children. Thereafter, petitioner filed a complaint for divorce, and then an amended complaint for divorce in which she sought sole custody of the children.

In his answer to petitioner’s amended complaint, respondent sought sole custody of the children. Accordingly, by the time of the hearing below, both parties sought sole legal custody of the children. At the trial level, respondent sought discovery of treatment records relating to petitioner’s past mental health treatment. At a deposition, respondent attempted to question petitioner about her past mental health treatment.

She refused to ⁵⁸⁹ answer the questions, invoking the psychotherapist-patient privilege contained in Maryland Code (1974, 1998 Repl.Vol.), section 9 — 109(b) of the Courts & Judicial Proceedings Article. 1 Respondent then filed a Motion to Compel Discovery. Petitioner answered with a Motion for Protective Order, and a Motion to Quash the subpoenas directed to her past and present treating mental health psychiatrists, psychologists, and counselors. The circuit court denied, in part, respondent’s Motion to Compel Discovery, initially reserving, however, the issue of whether it would permit subpoenas, which respondent had caused to be issued to certain of petitioner’s health care providers, to be utilized to require the production of the ⁵⁹⁰ records to respondent. The trial court, in its ruling, noted that the scope of the subpoenas was limited to current records in the possession of the providers that “are reasonably related to matters addressing [petitioner’s] current parental fitness for custody of the Parties[’] two minor children.” As to these records, it directed that the post-1994 records be delivered to the court under seal for the court’s inspection in camera, with access initially denied to all parties.

It also directed that no other documents listed on the subpoenas needed to be produced at that time. Additionally, it found that petitioner had not waived the psychiatrist/psychologist-patient privilege by attempting to obtain sole custody of the children. 2 Respondent noted an interlocutory appeal in respect to that portion of the trial court’s ruling precluding discovery of all of the wife’s mental health records. In the meantime, petitioner had complied with the trial court’s order by submitting the required records under seal with the trial court. Respondent’s interlocutory appeal was dismissed by the Court of Special Appeals as premature.

Approximately a year later, 3 the trial court, as we have indicated, modified its previous order and required the production of all of the petitioner’s mental health records from January of 1995 forward. Petitioner produced those records several days before the hearing. A separate Motion for Psychological Evaluation was filed by respondent after the trial court’s initial ruling that certain of petitioner’s records be submitted in camera. Petitioner responded to the motion for a psychological examination of the family by requesting it be denied, because, in her opinion, the trial court had already ordered the production of sufficient ⁵⁹¹ records, which made a further evaluation unnecessary.

She also proffered that, should a review of the records not be sufficient, the trial court had the inherent power to require another evaluation. She stated in her answer: 1. This matter has previously been resolved pursuant to Plaintiffs Motion for a Protective Order ... in which this Honorable Court ordered that certain records requested by the Defendant and pertaining to Plaintiffs mental health be produced for review, in camera. If, based upon a review of those records, this Honorable Court deemed it necessary and appropriate to require an independent medical/psychological evaluation, same would be forthcoming, pursuant to this Court’s inherent ability to so order.

The trial court denied the Motion for Psychological Evaluation. After reviewing the records it had required to be submitted in camera, the trial court did not revisit the issue of a psychological evaluation, nor did respondent either then, or after the trial court had reviewed the initial records and ordered all of the post-1994 records to be furnished to respondent, renew his request for such an evaluation. At the conclusion of the merits hearing, the trial court awarded sole legal custody of the children to petitioner, saying: “Sole legal custody is awarded to Mrs. Laznovsky primarily because both of the parties testified that they are unable to communicate.” Respondent appealed that decision (along with several other rulings of the trial court) to the Court of Special Appeals. 4 ⁵⁹² As relevant to the issues presented to us, respondent asserted to the Court of Special Appeals that petitioner, by claiming to be a fit and proper person to have sole legal custody of the children, had placed her mental condition at issue and thus had waived the psychiatrist/patient privilege created by Maryland Code (1974, 1998 Repl.Vol.), section 9-109 of the Courts & Judicial Proceedings Article. The Court of Special Appeals agreed and, in a 2-1 decision, reversed the circuit court on that issue.

It held, in relevant part, that as to the privilege granted in respect to mental health treatment records by ⁵⁹³ section 9 — 109(b) 5 and by Maryland Code (1974,1994 RepLVol., 1998 Cum.Supp.), section 4-307 of the Health-General Article, that: These rights must be balanced against the best interests of the children in a contested custody case. Fitness is the dominant consideration in a custody case; the mental and emotional state of a parent is most material and relevant .... ... [W]ide latitude must be given in discovery to allow a litigant to develop his or her case. The trial court’s failure to allow the appellee to adduce the status of the appellee’s mental health, her diagnosis, prognosis, and treatment, and its effect on her ability to parent the children and serve as the sole custodial parent, constituted an abuse of discretion. While it is rare to reverse a trial court on a discovery ruling, where a party’s case was prejudiced by the failure to produce records that would clearly develop a relevant line of cross-examination and the basis for an expert’s opinion as to the fitness of a party to be a custodial parent, it constituted reversible abuse of discretion)[ 6 ] [Footnote omitted.] We disagree and reverse the judgment of the Court of Special Appeals. ⁵⁹⁴ II.

Privilege In this review, we must consider whether a statutory privilege is applicable in this custody case. In that process, we must consider the balancing that occurs, or may occur, when a legislatively created privilege appears to conflict with a court-created standard for determinations in custody matters. Our first step is to look at the privilege statutes. What is now Maryland Code (1974, 1998 RepLVol.), section 9-109(b) of the Courts & Judicial Proceedings Article, 7 was initially adopted as 1966 Maryland Laws, Chapter 503.

Senate Bill 118, the bill which became Chapter 503, as initially filed and presented, did not include any exception permitting a trial court to compel disclosure of mental health records in child custody cases, although it did have other exceptions, including one for when a person places his or her mental condition in issue. The child custody exception was amended into Senate Bill 118 prior to its passage. As initially enacted, it contained specific language that permitted a trial judge in a custody proceeding to compel the disclosure of otherwise privileged mental health records, if the judge believed that such disclosure was “necessary to a proper determination of the issue of custody.” 8 This prior exception is in accord with the position now taken by respondent and the majority opinion of the Court of Special Appeals below: that if a trial judge, in the exercise of his or her discretion, determines that such records are necessary in order to determine custody matters, then the privilege may be deemed to be overcome by the trial court, on its own motion or on motion of an opposing party. Since the original enactment of the law, additional exceptions have been added.

In 1976, in House Bill 1, the Legislature created another exception: ⁵⁹⁵ (II) After the patient’s death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient[.] 1976 Md. Laws, Chap. 363. In 1981, another exception was clarified when House Bill 766 was enacted, specifying that the privilege is waived when authorized representatives of the patient make claims against certain mental health care providers. See 1981 Md. Laws, Chap. 236. There has been only one instance where an exception, previously a part of this privilege statute, has been removed or repealed.

It relates to the issue squarely before this Court. The exception to the privilege for child custody matters stayed in the law until 1977. At that time, Senate Bill 90 was passed, repealing and reenacting section 9-109 of the privilege statute. Its title stated that it was “F[or] the purpose of eliminating an exception to the privilege to refuse to disclose communications relating to a patient’s mental or emotional disorder as related to a psychiatrist or a psychologist.” 1977 Md. Laws, Chap. 685.

Senate Bill 90 removed the exception permitting trial judges to compel disclosure in child custody matters. This was the only change provided in Senate Bill 90. The child custody exception was not, therefore, inadvertently omitted as part of some general attempt at recodification. It was specifically repealed.

The repeal of the exception was an essential element, and the only purpose, of the bill. The legislative history of Senate Bill 90 confirms that its purpose was to ensure the confidentiality of psychiatrist-patient treatment communications and records, even in child custody cases. That legislative history permits no other reasonable inferences. The bill file, for instance, includes a Fiscal Note from the Department of Fiscal Services noting that: This bill removes from existing law concerning a patient[’]s mental disorder as related to a psychiatrist or psychologist, an exception to the privilege to refuse disclosure of communications between patient and physician when custody of children is involved. ⁵⁹⁶ Additionally, handwritten summaries of the bill’s effects are included in the bill file: [Section] 9-109(b) Cts. & Judicial Proceedings provides for the general privilege to refuse to testify as to communications between a patient and his psychiatrist.

The single exception to this privilege is in [section] 9-109(c) which provides that a judge may compel disclosure in custody cases. SB 90 attempts to delete this exception. Purpose for this bill is to eliminate circumstances where psychiatrists are called into court, thereby eliminating the therapeutic relationship. Examples are: patient with severe mental disorder and collateral custody battle may be in position to realize that psychiatric relationship will be disclosed; thereby closing possibility of further treatment.

Dr. Jonas Rappeport, Chief Medical Officer advises that when [General] Assembly enacted psych, privilege in 1966, Model Connecticut law upon which this [section] is based did not have this exception. Judge Liss stated in letter re 90 that to compel disclosure is “not fair either to the professional person involved nor to his patient, who should be able to speak frankly without fear of disclosure.” The National Organization for Women, in a position letter to the committee, dated January 27,1977, stated in relevant part: The National Organization for Women supports Senate Bill 90, concerning Psychiatrist — Patient Privilege. The marital discord which precedes divorce and custody actions is often of such an emotional nature as to lead one or both parties to seek professional psychiatric counselling in attempting to restructure their lives. It is the dependent spouse, more often the wife, who faces the greater changes during this period, and who views the prospects of economic and emotional independence perhaps for the first time.

The desire for psychiatric consultation during this transition is understandable, and it is our feeling that such efforts should ⁵⁹⁷ not be used against one in custody proceedings, as they may be now. It is furthermore, deleterious to the therapeutic relationship, which must have as its basis trust and confidentiality, to know that a judge may compel disclosures of a most intimate nature, and that such disclosures may affect the outcome of a custody case. More important, the Chairman of the Judicial Proceedings Committee, Senator J. Joseph Curran (now Attorney General of Maryland), addressed a letter dated January 20, 1977, to Judge Anselm Sodaro of the Supreme Bench of Baltimore, which invited comment from other judges. In his letter, Senator Curran stated in relevant part: At the Committee hearing on this bill, questions were posed as to how often in child custody cases does a judge compel disclosure.

We understand the need to encourage a full and frank discussion between the patient and the psychiatrist, and want to enact laws to meet this end. However, I would very much like to receive opinions as to how often this information is needed in custody cases. Judge Solomon Liss, then a member of the Court of Special Appeals, wrote a letter, dated January 25, 1977, to the committee, replying, in relevant part that: [I]n the eight years I spent on the trial bench, I never found it necessary to compel the testimony of a psychiatrist or psychologist in a child custody case. Of course, those of us on the Supreme Bench ... had available the services of ...

Dr. Jonas Rappeport and his staff.... ... I would be reluctant to urge compelled disclosure except as a last resort. Such an edict is not fair either to the professional person involved nor to his patient, who should be able to speak frankly without fear of disclosure. Judge Watts, replying to the letter from Senator Curran, stated in a letter dated January 26,1977: For three years I presided in the Domestic Relations Court of Baltimore City.

During the present term I hear domestic cases regularly in addition to my normal case ⁵⁹⁸ assignment. On the basis of this experience, I can tell you that there have been very few occasions on which I have had to compel an individual to produce psychiatric information. In fact, I can recall only four or five cases where this was necessary. When an individual is under psychiatric treatment, he is usually willing to bring this information to the attention of the Court.

Dr. Jonas R. Rappeport also responded to Senator Curran by letter dated January 24, 1977, stating in relevant part: As you know, I was involved in the development of the initial psychiatrist/psychologist privilege legislation and worked very strongly for its passage in the 60s. It was with reluctance that our committee of the Maryland Psychiatric Society accepted the child custody exception. However, because of general concerns about the entire concept of this special privilege, we recognized the need to go along with this amendment. In practice, since the passage of this original legislation, the child custody exception has caused some hardships.

Several colleagues have reported to me the extreme difficulty that they have in working with parents in psychotherapy when the parent is made aware of the .fact that anything that they mention in the therapeutic sessions may be brought out in a custody proceedings if the judge feels that such information is germane to his decision. Just a few weeks ago I personally saw a patient for a consultation who currently has custody of his children and felt it necessary to warn him of the fact that anything that he told me might be revealed in court should the judge deem it necessary when and if there was an attempt to gain custody of his children by his former wife. As a result thereof he hesitated about accepting my recommendation for continued treatment with me although I am happy to report that he has accepted my recommendation for treatment and is seeing me. While his feeling was that he would have to take his chances, I have no way of knowing how much this threat of public exposure to the very sensitive psychiatrist/patient relationship will interfere with treatment.

In the past I have known of one ⁵⁹⁹ patient who has elected not to have treatment in view of this particular problem. Several other psychiatrists have reported to me that they feel that this exception to the psychiatrist/patient privilege does prevent very needy parents, that is, people in need of psychiatric treatment, from obtaining it and, therefore, in fact may eventually place the children at a disadvantage. If their parents cannot be “cured”, then the child continues to be exposed to an emotionally disturbed parent. While I recognize that custody decisions are exceedingly difficult ones for the court to make in that the judge needs all the help that he can obtain under such circumstances, I believe that such help can be obtained from other sources.

No matter how honestly and openly a psychiatrist subpoenaed into court to testify about his relationship with his patient may wish to be, we can clearly understand that he may not either present or even know all of the information that might be available to independent examiners.... [W]e believe we have served the court very well by having the same psychiatrist and psychologist examine all parties in question to custody battles and thereby have an opportunity for a very well balanced view of the situation.... [W]e feel that we are much more capable of rendering an unbiased, overall view of the situation and presenting recommendations that are truly in the best interest of the child than we might be able to do should we be involved with only one parent whether it be a long term therapeutic relationship or merely an evaluation. For these reasons stated above I feel that the benefits to society of having confidential and privileged treatment available to troubled parents far outweighs the limitations placed upon the court by not having such information revealed against the parents’ wishes. It is clear to us that the Legislature was fully aware of the ramifications of the child custody exception amended into the statute during its original enactment. At the time the exception was repealed, with the information furnished and available to the Legislature through the proceedings of its commit ⁶⁰⁰ tee, it is evident that they were being asked to consider the balancing of the interests in the psychiatrist/psychologist-patient privilege with the need of the courts to have such information in assessing the best interests of the children in custody cases. 9 The psychiatrist/psychologist-patient privilege prevailed as the Legislature elected to remove the exception that had theretofore permitted the courts to hold the privilege inapplicable in child custody cases.

Thus, the Legislature balanced the interests and made the determination. Of some interest is the importance of confidentiality in other mental health treatment privilege statutes in which the Legislature has not included any exceptions for child custody cases, although it has created other exceptions. Maryland Code (1974, 1994 Repl.Vol., 1998 Cum.Supp.), section 4-307(h)(l)(v) of the Health-General Article provides: (h) ... (1) A health care provider shall disclose a medical record without the authorization of a person in interest: (v) In accordance with service of compulsory process or a discovery request, as permitted under § 9-109(d), § 9-109.1(d), or § 9-121(d) of the Courts and Judicial Proceedings Article, or as otherwise provided by law, to a court, an administrative tribunal, or a party to a civil court, administrative, or health claims arbitration proceeding....

Subsection 9-109(d) of the Courts & Judicial Proceedings Article, relating to the psychiatrist-patient privilege, is the exception provision under the statute we address in the case at bar. Subsection 9-109.1(d) relates to the patient-psychia ⁶⁰¹ trist mental health nursing specialist privilege; subsection 9-121(d) relates to exceptions in respect to a licensed social worker-client privilege. In none of the other statutes is there a child custody exception. At the time of their enactment, the same concerns expressed at the time of the enactment of 1977 Maryland Laws, Chapter 685 were expressed.

Section 9-109.1 was enacted as 1990 Maryland Laws, Chapter 300. The bill file for that enactment indicates that the position of the Maryland Nurses’ Association was made available to the Legislature in a letter dated January 17, 1999. The association said, in relevant part: This is a Patients’ Rights bill to ensure that the communication between a client and a psychiatric mental health nursing specialist has the full protection of privileged communication. The essence of this bill is not new.

The precedent has been established in the following sections of the Annotated Code of Maryland (9-109) and (9-121).... Passage of this bill would provide parity for clients of psychiatric-mental health nursing specialists with those of the other core mental health disciplines including psychiatrists, psychologists and social workers. Currently, citizens in Maryland being treated by psychiatric-mental health nursing specialists have had their records accessed in judicial proceedings without their consent. To say this places these clients at a gross disadvantage is an understatement.

All citizens seeking psychiatric-mental health treatment should be assured that their client/provider communications are equally protected under the law. Even more relevant are some of the communications made available when section 9-121(d) was enacted by Senate Bill 420, just six years after the 1977 repeal of the child custody exception in section 9-109. 1983 Md. Laws, Chap. 531. The bill file contains several pertinent references. First, it contained the testimony of a licensed social worker, Torpley M. Richards, LCSW, which provided, in relevant part: ⁶⁰² Several years ago a physician referred to me a man who was distressed by severe marital problems.

This man and his wife had previously been in couples therapy but they had not been able to resolve their many differences. They decided to have a trial separation and to seek individual support during this difficult time. When Mr. A was referred to me for treatment, his wife, Mrs. A was referred to a psychiatrist. One year later, Mrs. A decided to file for divorce.

She asked for sole custody of the couples’ three children claiming that Mr. A was “unfit” to have custody. Mrs. A’s lawyer was well aware that at this time social workers are not protected by law for privileged communication. Mrs. A’s lawyer could have questioned me directly about confidences shared with me by Mr. A, under oath, in a court of law, without Mr. A’s permission. At the same time, Mrs. A enjoyed the protection of privileged communication.

Fortunately for Mr. A, this case never came to trial. In communications and testimony before the Senate Judicial Proceedings Committee, the same committee through which 1977 Maryland Laws, Chapter 685 had previously passed, other comments even more directly pointed out the importance of the privilege in child custody cases. A letter dated February 22, 1983, from the Administrator of the Family Counseling Services of Associated Catholic Charities, Inc., provided, in part: The protection of privileged communication is especially important in cases of separation and divorce, contested child custody ... suits, and employers seeking information on employees. A typical example of the protection privileged communication provides follows: A mother, who was concerned about the effects of a recent separation on her children, sought counseling with our agency.

Her husband, who was fighting the terms of the divorce settlement, sought information from Associated Catholic Charities which would prove her incompetence as a parent. In fact, this mother was seeking to help her children, who were suffering as a result of the ⁶⁰³ adversarial position of their parents. If we had been required to give information to this husband, the wife would have left counseling, and the children would have continued to suffer. For these reasons, Associated Catholic Charities supports SB 420.

There was additional testimony on behalf of Associated Catholic Charities, Inc., by Ms. Cheryl Lynch, dated February 24, 1983: This confidentiality is important in establishing the trust necessary for the client to reveal personal information in order to receive help. As a family service agency, Catholic Charities serves approximately 300 families a month through its Counseling Services. The protection of privileged communication is especially important in cases of separation and divorce, contested child custody, and employers seeking information on employees. People who are struggling with difficult or emotional problems have to know that they can speak freely to a counselor with the understanding that the information they disclose is held in confidence.

From these private disclosures, many people find relief from their suffering and help in resolving their difficulties. It is clear that the issue of whether there should be an exception from mental health privilege statutes for child custody cases has repeatedly been presented to the Legislature since 1977. In fact, the need for the privilege in child custody cases has been proffered to the Legislature as an important, special reason for the necessity of the privilege. The Legislature, by enacting these subsequent privilege statutes, has not created any exemption for child custody cases.

We emphasize again that we are not faced with a privilege statute that has always been silent as to whether a court could compel the production of otherwise confidential communications in child custody cases. The Maryland statute was originally enacted with a specific exception permitting a court to compel such information in such a circumstance, and that ⁶⁰⁴ exception remained intact for eleven years. In 1977, addressing the concerns of the mental health profession, the Legislature repealed that provision. The intention of the Legislature is clear.

It made a public policy choice not to exempt child custody cases from the scope of the privilege, and has continued to preserve the privilege even in child custody cases in its enactment of other privilege statutes in the mental health area. Additionally, Maryland Code (1974, 1994 Repl.Vol., 1998 Cum.Supp.), section 4-302 of the Health-General Article provides that: (a) In general. — A health care provider shall: (1) Keep the medical record of a patient or recipient confidential; and (2) Disclose the medical record only: (i) As provided by this subtitle; or (ii) As otherwise provided by law. Thereafter, there are several exceptions crafted in the Health-General Article. See Md.Code (1974, 1994 RepLVol., 1998 Cum.Supp.), §§ 4-305, 4-306, 4-307.

None contain a child custody exception. As is clear from the legislative history above, the Legislature knows how to craft exceptions to confidentiality privileges. Section 9-109 itself contains several exceptions, as do section 9-109.1 and section 9-110, which deals with the ac-countani/client privilege. Maryland Code (1974, 1998 RepLVol.), section 5-609 of the Courts & Judicial Proceedings Article affords protection from causes of action for mental health providers when patients subsequently exhibit violent behavior, unless the provider “knew of the patient’s propensity for violence” or the patient had indicated to the provider an intention to inflict injury on another.

If the provider knows of the propensity, or the patient indicates the intent to injure another, the provider can only avail himself or herself of the immunity protection if he or she has done certain things, including informing appropri ⁶⁰⁵ ate law enforcement agencies of the patient’s propensities or intentions to inflict injury. That statute then provides: (d) Patient confidentiality. — No cause of action or disciplinary action may arise under any patient confidentiality act against a mental health care provider or administrator for confidences disclosed or not disclosed in good faith to third parties in an effort to discharge a duty arising under this section according to the provisions of subsection (c) of this section. See also Md.Code (1974, 1998 RepLVol.), § 9-112 of the Courts & Judicial Proceedings Article (“Privileged communications — News media.”); compare section 9-105 (confidentiality of spousal communications) with section 9-106 (providing exceptions in criminal cases involving abuse of minors, and also providing that the privilege is waived if previously the spouse asserted the privilege and refused to testify against the other spouse in a spousal assault case). Additionally, the Legislature, by a subsequent statute first enacted in 1987, has expressly exempted certain matters relating to reporting allegations of child abuse from the prohibitions against compelled disclosure of psychiatrist-patient diagnosis and treatment records.

Maryland Code (1984, 1991 RepLVol., 1998 Cum.Supp.), section 5-704 of the Family Law Article (enacted as 1987 Maryland Laws, Chapter 635) provides in relevant part: § 5-704. Reporting of abuse or neglect — By health practitioner.... (a) In general. — (1) Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, ... acting in a professional capacity, who has reason to believe that a child has been subjected to: (i) abuse, shall notify the local department or the appropriate law enforcement agency; or (ii) neglect, shall notify the local department.... [Some ⁶⁰⁶ emphasis added.][ 10 ] There may well be other privilege statutes containing exceptions. 11 What is clear is that the Legislature knows how to create privileges, and how to create exceptions and how to repeal exceptions. Its decision to repeal the child custody exception at issue in the case sub judice was a clear policy statement.

When attempting to discern the intention of the Legislature in enacting a particular statute, we have recently said in Edgewater Liquors, Inc. v. Liston, 349 Md. 803 , 709 A.2d 1301 (1998): “In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention.” Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730, 731 (1986); see also Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444 , 697 A.2d 455, 458 (1997). Legislative intent generally is derived from the words of the statute at issue. “We are not constrained, however, by ... ‘the literal or usual meaning’ of the terms at issue.” “Furthermore, we do not read statutory language ‘in isolation or out of context [but construe it] in light of the legislature’s general purpose and in the context of the statute as a whole.’ ” “The ‘meaning of the plainest language’ is controlled by the context in which it appears.” Id. at 807-08, 709 A.2d at 1303 (some citations omitted). We commented in an earlier case: ⁶⁰⁷ When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed in the Annotated Code.

We may and often must consider other “external manifestations” or “persuasive evidence,” including a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case. ... Thus, in State v. One 1983 Chevrolet Van, 309 Md. 327 , 524 A.2d 51 (1987), ... [although we did not describe any of the statutes involved in that case as ambiguous or uncertain, we did search for legislative purpose or meaning — what Judge Orth, writing for the Court, described as “the legislative scheme.”... See also Ogrinz v. James, 309 Md. 381 , 524 A.2d 77 (1987), in which we considered legislative history (a committee report) to assist in construing legislation that we did not identify as ambiguous or of uncertain meaning. Kaczorowski v. Mayor and City Council, 309 Md. 505, 514-15 , 525 A.2d 628, 632-33 (1987) (emphasis added).

In the case sub judice, the amendment during passage of the original bill that had inserted a child custody exception, the subsequent repeal of the exception, the failure to include child custody exceptions in similar statutes, and the legislative history of the various statutes indicates that the Legislature intended that there be no express exception to the privilege in child custody cases. There is little case law on the exact issue presented here among our sister states. Several courts that have addressed the issue have dealt with exemption statutes similar to the exemption repealed in this state by 1977 Maryland Laws, Chapter 685. Accordingly, they do not sufficiently address the issue before us to be particularly helpful although we shall discuss cases from two of the states (Alabama and Louisiana) ⁶⁰⁸ to indicate the view contrary to the one that we adopt here.

These states include Alabama, Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986); Alaska, In the Matter of D.D.S., 869 P.2d 160 (Alaska 1994) (exception for CINA cases); Louisiana, Carney v. Carney, 525 So.2d 357 (La.Ct.App.), writ denied, 530 So.2d 88 (La.1988); Michigan, LeGendre v. Monroe County, 234 Mich.App. 708 , 739 n. 18, 600 N.W.2d 78 , 94 n. 18 (1999) (sex discrimination case in which the child custody exception was mentioned); Missouri, In re Marriage of Daneshfar, 953 S.W.2d 95 (Mo.Ct.App.1997); In Interest of S.J., 849 S.W.2d 608 , 610-11 (Mo.Ct.App.1993) (exception in termination of parental rights case); Texas, Smith v. Gayle, 834 S.W.2d 105 (Tex.App.—Houston [1st Dist.] 1992). The exception language from the other states’ cases are similar to the language of Maryland’s repealed exception. For example, the Alabama statute provides: “There is no privilege ... in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.” Ala. R. Evid. 503(d)(5).

The language of the exception formerly contained in section 9-109 stated: “the presiding judge of a court of record may compel such disclosure in cases involving the custody of children, if, in his opinion, such disclosure is necessary to a proper determination of the issue of custody.” 1966 Md. Laws, Chap. 503. Overall, few states have resolved the issue presented in respect to the psychiatrist/psychologist-patient privilege in child custody cases. Moreover, we have found in our research no case in which a foreign state’s legislative body has specifically balanced the competing interests of the needs of proper mental health and the needs for courts to have such information in child custody matters, by first enacting a child custody exception and then repealing it, in order to ensure confidentiality of mental health records. In our review of the law of other states, we look also to the cases in respect to the related physician-patient privilege.

We start our review of the foreign authorities by considering privilege cases in respect to petitioner’s first question: “Does a party seeking an award of sole custody place their mental ⁶⁰⁹ health at issue, so as to require the disclosure of privileged mental health records?” The other states are divided on the issue. Those that answer the question affirmatively generally follow the Alabama approach. Those that answer the question negatively generally follow the Florida approach. As we have indicated above,