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divorce-insideRecently I’ve talked to folks who are confused about what counselors can talk about when it comes to helping courts make custody decisions and I wanted to explain what we can and can’t say.

In general, therapists don’t make custody recommendations for ongoing clients, period.

A child custody evaluation is a very specific service that requires very specific training and it’s not the kind of thing a therapist could do for ongoing clients. Most of the people who do them are psychologists (although social workers and counselors are able to do the work as well).

Those of us who are regular old therapists don’t do custody evaluations and we definitely do not do them for current clients.

If I’m seeing a child or a parent for therapy I’ve entered a confidential, goal-oriented relationship that necessarily carries some bias. If I’m seeing a client who is having friction with a spouse I will only have access to her version of events even if I have a session or two with her partner. A couple of sessions with one partner in the context of a therapeutic relationship with the other isn’t going to do much to off-set any bias I carry. Obviously I cannot then say whether or not she would make the best parent.

Likewise if I’m seeing the children I’m not going to be able to look at the parents objectively because in a treatment-focused counseling relationship with a child I’m joining the family system and working with the members to change the system. Even if the child is my primary client, when I work with younger kids I am also working with the parents.

When I’m working with teens I have less parental contact — parents rarely join us for a session — but the issues of bias are still relevant.

So you can see why stepping outside of that therapist role and becoming an objective evaluator would be impossible; there’s no way I could get the distance necessary to see the family without prejudice. Sure, I might have an opinion but it’s not ethical or appropriate for me to share that opinion in a court of law.

Therapists are often asked to testify in custody cases but what we can ethically say is limited. Per Ohio law (that’s a link to a pdf) we absolutely should not make custody recommendations even when asked point blank by a judge. We can only testify to facts such as:

  • How often the client(s) came to treatment;
  • Whether or not the client(s) completed the treatment plan;
  • Which parent brought the child(ren) to treatment or attended sessions.

Basically the kinds of facts that can be corroborated.

According to a recent training I attended led by legal counsel for the Ohio Counselor, Social Work and Marriage & Family Therapist Board, a whole bunch of us are getting in trouble for misunderstanding our scope of practice when it comes to custody issues. Part of that is that we get nervous on the stand and maybe say more than we ought to and part of it is that some of us just don’t know better, which is why it’s a good idea for us to get our own legal representation should we get a subpoena. That way we understand what we can and can’t ethically say when called to testify.

Whether or not we must disclose information about a client without his or her permission — such as the contents of our sessions — depends on what the court says. But it’s important to know that lawyers can subpoena therapy case notes for a divorce case. While a therapist can and should fight to protect a client’s confidentiality, her hands may be tied legally. Therapists should make sure clients understand the limits of confidentiality during intake.

With kids, confidentiality belongs to the parents. Parents have a right to their children’s clinical case notes because they have rights to all of their medical records. When a divorce is happening this gets way more complicated. As that link shares, which parent has the right to the child’s case notes will depend on who has legal say over the child’s medical decisions.

If you have questions about your rights or your child’s rights when it comes to divorce and confidentiality, talk to the counselor and talk to a lawyer. But do know that you can’t ask your or your child’s counselor to recommend that you get custody of your children.

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