Recently 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.
I think Russell Crowe ought to play Sondheim if they ever decide to do a biopic. What do you think?
I thought I’d tell you about how I write my clinical case notes because it’s the kind of thing was interested in before I became a counselor and I still like learning how other people write theirs. (Treatment plans, too, but that’s a topic for another day.)
When I think about writing case notes I think about turning one of Sondheim‘s writing rules on its head. Stephen Sondheim says that writing lyrics for musical theater comes down to these three principles: Content dictates form; less is more; and god is in the details. In writing case notes I think that form often dictates content. In other words, I write to a form and it directs my train of thought thus dictating the content.
Like a lot of therapists, I use a modified version of what’s called a SOAP format. SOAP is an acronym that stands for Subjective, Objective, Assessment and Plan. For example, if I was counseling, say, Mama Bear of Goldilocks and the Three Bears, and she was telling me about her frustration cooking breakfast for her picky family, I might write:
Client was present with therapist. Client discussed her challenges in cooking breakfast. Client says her husband likes his food much hotter than she does but cooler than her son prefers it. Client says she ends up having to cook three different breakfasts and gets up several hours early to do so. Client reports feeling “resentful” towards her family. Therapist asked client about her previous plan to serve family cold cereal. Client says she feels guilty when she does this. Therapist and client discussed her feelings of guilt. Therapist asked if client’s feelings of resentment may come out with her family in other ways. Client identified that when she feels resentful she has trouble being pleasant on the family’s morning walks in the forest. Client says that in many ways her guilt about feeling resentful is worse than the guilt of serving cold cereal.
That’s the Subjective part of the case note, which basically means it’s what the client has to say and what I had to say. Now here’s the Objective part:
Client appeared extremely tired as evidenced by her repeated yawning during the session. Client had her apron on backward, her fur was uncombed and she had to ask therapist to repeat herself several times.
Notice there isn’t any opinion in there. I wouldn’t write, “Client is clearly being run ragged by her selfish family” or “Client needs to get it together and focus.”
In the Assessment piece I look back at our treatment plan and see if Mama Bear is making progress towards her goals. In Mama Bear’s case, she might have said that two of her goals are to make more time for herself and help her family become more self-sufficient. In this case I would say that Mama Bear is making progress because she is starting to think about the ways that her resentment towards her family is more of a problem for her than feeding them cold cereal. Even though she hasn’t changed her routine and even though she’s still having trouble putting her needs first, she’s thinking in ways that are moving her forward. I would note that like this:
Client is thinking critically about her choices and beginning to consider how taking care of herself might serve the family, too.
Finally there’s the Plan part of the SOAP note. Here I would write what our plans were whether they’re to meet again in a week, to have Mama Bear keep a diary of her feelings around breakfast or to ask her to ask Papa Bear to take one morning over this week.
What’s interesting to me about writing up the case notes is that using the SOAP format orients me to see the progress we’ve made in the session and in our counseling relationship as a whole. That’s the Sondheim-ish, “Form dictates content.” Writing our sessions in such a detached format gives me the perspective I need to really understand what it is that we’re doing together. When I’m in session, I try to stay present with my client. Writing up case notes after our time together gives me the chance to think back and reconsider my experience, which gives me new insight.
The second reason I keep things so bland is that case notes are confidential except when they’re not. Clients are (obviously) allowed to access their files and sometimes courts are allowed to access them, too. If this happens I want to protect the client (by keeping my opinion out of things — imagine the difference between sharing that Mama Bear’s apron is on backwards and saying something like, “Mama Bear sure didn’t know where her head was at that day” if she ends up in a heated custody battle) and I want to protect myself. I do that best by stating just the facts, ma’am.