Custody and Visitation Disputes – The Big Mistake

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Avoiding Liability Bulletin – February 2006

… Suppose that you are treating a mother and her two children (ages 9 and 11) who are involved in a custody and/or visitation dispute with the mother’s spouse, the father of the two children. Suppose further that the mother’s attorney requests that you provide a declaration or affidavit wherein you describe the nature of the therapy you are doing with the mother and the girls, and that you express your opinions regarding what you believe would be a custody and/or visitation arrangement in the best interests of the children. The attorney for the mother agrees to provide you with appropriate written authorizations from the mother, both on behalf of herself and on behalf of her two children. Should you cooperate and comply? While the answer will vary depending upon the circumstances and applicable law, this commonly occurring aspect of practice is often a “land mine” for the unwary therapist or counselor.

I have often advised therapists not to comply with such a request (for a variety of reasons) and to instead request or insist upon being subpoenaed to testify in court. By taking this route, the therapist is somewhat insulated from claims by the father that the therapist too quickly took sides and was too willing to cooperate with the mother, that the therapist provided information about the children without the father’s authorization, that the therapist breached the confidentiality of the children, or in some circumstances (such as where the father was seen once, either alone or in combination with the wife or a child), that the therapist breached the father’s privacy and confidentiality. Even though there may be adequate answers for some or all of the father’s assertions, therapists and counselors don’t want to have to deal with complaints and allegations of improper conduct. And, in highly charged legal proceedings involving custody and visitation, complaints are more likely.

When the therapist or counselor is in court pursuant to a subpoena, the other side (the father and his attorney) has the opportunity to object to the testimony of the therapist or counselor on the grounds of psychotherapist-patient privilege or on other grounds. The respective attorneys will usually argue the issue and the judge will make a ruling. Thus, the issue of privilege will be resolved and the judge will either direct the therapist to answer the questions or will uphold the claim of privilege and bar or limit the therapist’s testimony. As to the actual testimony, the therapist or counselor must, among other things, be careful not to characterize the behavior of the father as if the therapist has observed the behavior, but rather, the testimony should make clear that according to what the mother has said, the father behaves in a certain way.

If the therapist is to express an opinion related to custody or visitation, it is important for the therapist to clarify that the testimony is based upon the limited exposure of the therapist to the patients, and not the result of an evaluation. Some would argue (and ethics may dictate) that the therapist should not express an opinion on a custody or visitation arrangement unless the therapist performed an independent and objective evaluation. What the therapist might say, which should not be objectionable, is that he or she believes, based upon the work done with the patients, that the mother would make (and/or has been) a good custodial parent (if that is the therapist’s belief, of course) or that based solely upon what the children have said, it would not be in the best interests of the children if there were unsupervised visitation with the father at the present time.

It is critically important to remember that in many cases, the child will be the holder of the privilege – not the parent. Thus, the therapist might be obligated to assert privilege on behalf of the minor when he or she is initially served with a subpoena for the records of the children. In some cases, the court will appoint an attorney, a guardian ad litem, or other named individual to represent the child in the custody or visitation proceeding. This individual will often be able to waive or assert the privilege upon behalf of the minor child. Remember, there is a difference between who is the “holder of the privilege” and who signs an authorization form on behalf of a minor.

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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