… Divorce (marital dissolution), child custody, and visitation disputes often involve very contentious parties who will not be hesitant to complain about a therapist or counselor who treats their minor child without appropriate consent. Litigating parties sometimes have a misunderstanding about custody and control issues, including consent to treat, and sometimes they will try to scare the therapist or counselor into doing something that may not be in the patient’s best interests (or the best interests of the counselor or therapist).

If a minor is not able to consent to treatment on his or her own behalf (state laws vary widely in this regard), then generally, consent must be given by a parent or guardian, or under certain circumstances, by both parents. In an intact family, the general rule is that either parent may consent to the child’s treatment. Typically a therapist or counselor may want to get the consent of the other parent, or may want to inform the other parent of the treatment, but at other times, such action may not be possible or warranted. Some state laws, however, contain requirements regarding notification of the other parent. Those laws may provide for exceptions to the requirement of notification.

With respect to sole “legal custody,” the person who has such custody is the one who must authorize or consent to treatment of the minor. The sole legal custodian is generally viewed as the one who has the right and the responsibility to make the decisions related to the health, education and welfare of the child. “Physical custody” is simply about whom the child resides with – sometimes referred to as the residential parent or the custodial parent. A parent who does not have legal custody, whether sole or joint, will generally have limited rights with respect to their minor child – such as limitations regarding the authorizing or consenting to care and accessing the medical or mental health records of the child. State laws vary widely with respect to the extent of such limitations.

With respect to joint legal custody, both parents will typically share the right and responsibility to make the decisions related to the health, education and welfare of the child. Stated otherwise, the general rule is that either parent may authorize or consent to treatment of their minor child unless the court order specifies otherwise. The court order will sometimes specify those circumstances when the consent of both parents is required, or when other conditions are placed upon the right of a joint custodian to act unilaterally. Again, some states may require notification of the other parent before or after a child is brought to a doctor or mental health professional by the other parent.

Sometimes the court order of joint legal custody may be ambiguous, such as when it requires the parents to consult with each other (rather than agree) prior to one of the parents obtaining care for the child. Therapists and counselors must be careful under these circumstances and do not want to commence treatment without proper authority. Aside from respectfully declining to treat under such circumstances (with appropriate explanation), the therapist might want to seek clarity about the court order from the attorney for the parent who seeks to obtain treatment for the minor. Perhaps that attorney would be willing to put something in writing with respect to his or her client’s compliance with the court order.

A safer way to proceed, if the circumstances warrant, is to tell the parent who seeks treatment that you will only treat the minor child if both parents consent. If they cannot agree, let the attorneys or the parties themselves work it out, perhaps with court oversight or involvement. It can be very disruptive to therapy and to the practitioner to be in the middle of a fight between two parents over whether or not treatment was appropriately authorized. These kinds of matters often find their way to the licensing board in the way of a complaint.

I have previously written (under the category of “Termination of Treatment” – in the June 2005 issue of the Avoiding Liability Bulletin – see the Archives section) about a troubling circumstance often faced by therapists and counselors in cases where there is joint legal custody and the court order requires the consent of both parents with respect to health care decisions. It is worth repeating here. Suppose that both parents consent to treatment of the child as per the requirements of the court order. Later, one of the parents calls the therapist or counselor and demands that he or she terminates treatment with the child. The parent may think of this or refer to it as a withdrawal or revocation of a consent previously given.

What is the therapist or counselor to do? What are the wishes of the other parent and the child? Should the therapist immediately cease treatment of the child? Could this constitute an abandonment or improper termination of the child’s treatment? These are but some of the questions that arise in such situations. It is important to point out here that each state may approach this situation differently and that there may be some ambiguity as to how this situation may be properly resolved. I have previously advised therapists in such situations to continue to treat the minor patient if the minor and the other parent want treatment to continue and if the therapist feels that a sudden termination would negatively affect the well being of the patient.

An argument in favor of continued treatment would be that the one parent is demanding a termination of treatment, but the court order requires the consent of both parents with regard to the major health care decisions affecting the child. The consent of both parents was acquired prior to commencement of treatment, and now the consent of both parents should be required for a termination. If the minor is a patient who under applicable state law can consent to his or her own treatment, the therapist’s decision to continue treatment is easier to make. Practitioners in such situations must be sure to obtain legal consultation before opting for such an approach, since the requirements and nuances of state law will affect the course of action taken.

I favor this approach (when lawful) because it puts the patient’s interests first and because it prevents the parent from manipulation. It is sometimes helpful to let the parent who demands a termination know that a sudden termination might be harmful to the child’s mental health and that the therapist will make note (in the records) of the fact that this was communicated to such parent. Depending upon circumstances, a court might view that parent’s action to be disruptive and manipulative, and this may affect the court’s ultimate determination of a custody or visitation arrangement.

… Therapists and counselors are sometimes exposed to the rigors of testifying in court or at a deposition. Perhaps they will be called to testify as a witness in a marital and custody/visitation proceeding, or in a civil lawsuit where the patient is suing for emotional and mental harm caused by the negligence of another, or in a criminal case or a dependency court proceeding. There are five general principles (there may be more), which may seem obvious to some, that are important to keep in mind. I have consulted with many practitioners who have for one reason or another run afoul of one or more of these principles – only to find themselves in a difficult situation.

…The first principle is to tell the truth. While this may seem obvious and unnecessary to mention, it is important to emphasize. Sometimes an attorney or a patient will try to get the therapist or counselor to testify a certain way in order to help the patient make his or her case. The attorney for the patient is an advocate. The patient is of course self-interested in his or her case and will be hoping that their therapist’s testimony is helpful to the case. In some cases, for example, the more “injured” (mentally or physically) the patient is, the more valuable the case. The practitioner who is called to testify must nevertheless testify to the truth as he or she sees it, and hopefully, as supported in the treatment records. It sometimes takes great strength of character to make this clear to the patient and to the attorney for the patient.

… The second principle is don’t guess. Witnesses are to testify to the facts, to what they remember, perhaps to their opinions, but are not expected to guess at answers. It is okay to say “I don’t know,” or “I don’t remember.” It is also permissible to answer a question by indicating that if you are able to review your records or a report, your recollection may be refreshed. Guessing can get you and the patient in trouble. Stick to the facts and to what you know and remember.

… The third principle is to be prepared. There are a few basic things that can be done to prepare for testifying as a witness. It is of course important to review the patient’s records prior to appearing in court or at a deposition. In some cases, the patient’s attorney will assist in preparing you for testimony at a deposition or at a court hearing or trial. The attorney may tell you what to expect on cross-examination or how the opposing attorney may try to attack your credibility. It is also important to be familiar with the scope of your license and continuing education requirements. Questions are often asked about licensing qualifications and requirements, continuing education requirements and compliance, and the differences between your license and perhaps the psychology license.

… The fourth principle is don’t duel with the adversary. Many witnesses make a mistake by dueling with the attorney who is representing the party adverse to the patient’s interests. This typically leads to the witness being distracted and to testimony that may not be accurate. Additionally, once the witness begins to argue or advocate for the patient, he/she takes on a partisan appearance and the testimony may lose its full effect. Witnesses should try to remain calm, concentrate on the question being asked, and should not worry that the opposing attorney is scoring points or gaining concessions. The patient’s attorney will have the opportunity to “rehabilitate” you or your testimony, should that become necessary.

… The fifth principle is to answer the specific question and don’t volunteer. A common instruction given to witnesses is to listen carefully to the question, and then answer it without volunteering additional information. If the question calls for a “yes or no answer,” then say “yes” or “no.” If it is necessary to explain your answer, this can usually be done at a later time with the help of the attorney representing your patient. Volunteering information not sought often gets the witness in trouble. If you don’t understand the question, indicate that fact to the questioner and ask that the question be repeated or rephrased. Words like “always,” “never,” “possible,” “probable,” “often” will be used by an attorney and may affect your answer. Pay close attention!

… Therapists and counselors who have been involved with patients or clients embroiled in a child custody battle may be aware of the controversy surrounding parental alienation syndrome, and its use or attempted use by practitioners who may testify as expert witnesses, such as those who act as child custody evaluators. For those who may be unfamiliar with this topic, parental alienation syndrome involves a disturbance in a child whose primary manifestation is a child’s unjustified campaign of denigration against, or rejection of, one parent, due to the influence of the other parent combined with the child’s own contributions. According to Dr. Richard Gardner, M.D., the originator of the term, the “disorder” (not in DSM) arises almost exclusively in the context of child custody disputes. There is great controversy throughout the country surrounding this “syndrome,” both with respect to its reliability and admissibility into evidence, and with respect to the recommended treatment for the affected minor. 

A bill has been introduced in the California Legislature that takes direct aim at such testimony. This bill provides, in part, that unproven, nonscientific theories, including but not limited to, alienation theories that assume that a child’s report of physical or sexual abuse by one parent is influenced or fabricated by the other parent, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The bill would prohibit the court from relying upon an unproven, unscientific theory and would prohibit the court from accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. The bill (Assembly Bill 612) also provides that nothing in its provisions shall limit the consideration of actual evidence, behaviors, statements, or conduct by either parent or by the child.

This bill is opposed by the Board of Behavioral Sciences, who licenses marriage and family therapists, clinical social workers, and soon, professional counselors. It is also opposed by the California Judges Association, the Family Law Section of the State Bar, and the California Association of Marriage and Family Therapists The bill’s sponsor is the California Protective Parents Association, a group formed in 1998 whose stated mission is to protect children from incest and family violence through research, education and advocacy. The primary objection to the bill is that it would remove the judge’s discretion in these contentious matters. If a child custody evaluator was of the opinion, based upon interviews and other information, that a child was coached to make false allegations of sexual or physical abuse, opponents of the bill believe that such testimony should be allowed. The general fear is that this bill would prevent or inhibit such testimony from being admitted into evidence.

Some mental health professionals believe that testimony about parental alienation syndrome may tend to oversimplify the causes of alienation and lead to confusion in the treatment of alienated children. They also believe that there is not an adequate scientific foundation for use of the word “syndrome.” Even though there is some recognition of the syndrome by the courts, many expert witnesses do not use the term when testifying. Instead, they may simply testify to their beliefs about whether or not the claims of abuse made by one parent constitute a fabrication, and then may testify about the bases for those beliefs. With respect to the issue of the treatment of a child who has been diagnosed with the disturbance or disorder of parental alienation syndrome, there exists considerable controversy regarding the appropriate custodial arrangement during the course of such treatment. The question often presented is whether it is appropriate to award primary custody to the alienated parent and severely restricted contact between the child and the parent who is believed to be the alienating parent.

I have only scratched the surface of this controversial topic. How do the courts in your state of practice handle testimony about parental alienation syndrome? Have there been similar legislative efforts to prohibit such testimony in your state?

... California has been one of the more liberal states when it comes to allowing treatment of a minor without parental consent. Now, as a result of legislation signed by Governor Schwarzenegger in late September 2010, the law will soon significantly expand the rights of minors (twelve years of age or older) to access mental health care or counseling without the consent of a parent. Effective January 1, 2011, minors who are twelve or older will be able to obtain outpatient mental health treatment or counseling from, for example, a licensed marriage and family therapist, licensed clinical social worker, or clinical psychologist provided that the practitioner determines that the minor is mature enough to participate intelligently in such outpatient treatment or counseling. Licensed professional clinical counselors are not as yet covered by this law allowing for treatment of minors without parental consent.

Under current law (2010), the practitioner must additionally be able to determine, as a pre-condition to treatment, that the minor is either the alleged victim of child abuse or that the minor would present a danger of serious physical or mental harm to self or others without such mental health treatment or counseling. This required determination by the practitioner is effectively eliminated by the passage of this new law. The practitioner’s burden is therefore substantially lessened, since determining whether or not the minor is able to participate intelligently in mental health treatment is seemingly not a difficult determination.

The law does place some burdens on the practitioner with respect to parental involvement in the mental health treatment of the minor and requires documentation of certain matters by the provider of care. More specifically, the statute requires parental (or guardian) involvement in the treatment of the minor, unless the therapist finds, after consulting with the minor, that such involvement would not be appropriate under the circumstances. The therapist must state in the records whether and when he or she attempted to contact the minor’s parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the opinion of the therapist, it would be inappropriate to contact the minor’s parent or guardian.

 The author of the bill argued that the general requirement of parental consent to provide mental health services to minors was an unnecessary barrier to the treatment of children, where early intervention and prevention is so important. He argued that this barrier was especially harmful to certain populations of youth, such as gay, bisexual, lesbian, and transgender youth, youth from immigrant families, homeless youth, and youth from cultural backgrounds that do not condone receiving mental health services. This change in law, the author argued, will mean that minors do not have to wait until their mental health deteriorates, and their safety is compromised by suicide, substance abuse, or violence, to receive services. Again, the treating practitioner will no longer have to make determinations regarding the dangerousness of the minor.

What is the status of the law in your state of practice? Are there significant restrictions on treating a minor without parental consent? Should the law be changed to enable greater access to mental health care or counseling for minors?

…Suppose that a client enters into a professional relationship with a counselor or therapist and explains that her marriage is falling apart. The kids are being negatively affected and she needs someone to help her through this stressful situation. She describes herself as being depressed. Not long into the professional relationship, the client tells the practitioner that she is concerned about her daughter, who is 11 years of age. She suspects that the daughter may have been sexually molested by her husband, the father. The client brings the daughter in for evaluation and treatment. Before the practitioner can determine whether he or she has a reasonable suspicion of sexual abuse, the mother files a child abuse report with a child protective services agency. The child abuse investigation results in a finding that the abuse was not substantiated (the investigation report is “inconclusive”).

In the custody litigation, the father claims that the wife should not be awarded custody because of her attempts to manipulate the system so as to gain an advantage with the judge. How might or should the Court view the matter? If the wife made a lawful report of suspected sexual abuse of the child, the Court should not, solely because of such report, punish her in any way that affects her rights to custody or visitation. It must be remembered that the standard for reporting, both for mandated reporters and those who are “permissive” reporters, is not limited to knowledge (perhaps the result of an admission or an observation), but rather, includes situations where there is “reasonable suspicion” (or, depending upon state law, a similar term) of child abuse (e.g., sexual abuse by the father of a minor daughter). Many child abuse investigations result in an inconclusive finding – that is, the report is not sufficiently substantiated. In essence, there is simply not enough evidence to determine whether child abuse occurred. Such a result does not necessarily mean that the reporter did anything wrong.

Had the investigation resulted in a determination such as “unfounded,” and depending upon other circumstances (such as critical commentary by the investigator regarding the reporter), perhaps the reported abuse would be found to be false or inherently improbable. In such cases, the court may limit the reporting parent’s custody or visitation. The law may require that there be substantial evidence that the parent who reported the suspected sexual abuse knowingly made a false report. Each state’s laws will vary to some extent (as I often say, the “fine nuances of the law”). It may also have to be demonstrated to the court’s satisfaction that the reporter acted with the intent to interfere with the other parent’s lawful contact with the child. State laws dealing with custody may also require that the child abuse report be made during the pendency of a custody proceeding in order for the court to make an adverse decision against the reporter’s right to custody or visitation based solely upon his or her reporting of child abuse. Alternatively, state laws may be silent on some of these matters.

The fact that the patient brought the daughter to see a licensed mental health professional for evaluation and treatment should not be used against the wife. While the father may allege that this too was part of the effort to position the wife in the custody battle, the mere fact of bringing the girl in for evaluation and treatment should not be able to be used against the mother (assuming that “bad faith” is not demonstrated). In summary, all that the mother needed in order to make a lawful report of child abuse was reasonable suspicion. To not make a report because of a fear that child abuse may not be found by the investigators (perhaps because of negligence, incompetence, or the lack of evidence), is not good for the safety of children. Thus, lawmakers in every state (I trust) have enacted immunity statutes that protect those who report child abuse, whether they are mandated reporters or not. There may be a requirement as a condition of immunity that the reporter acts in good faith – or, not in bad faith.