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What Every Therapist Needs to Know about Child Custody Battles
- Submitted by

Custody Evaluations, Mediation & Family Therapy

3172 Walford Ave. Suite 5
Eureka, CA 95503
(707) 444-0267

What Every Therapist Needs To Know About Child Custody Battles

When I tell people what I do for a living the most common response I get is “I could never do that.” Surprisingly this response comes from mental health professionals as well as highly educated and skilled professionals in all walks of life. So what is it that I do that is so enshrouded with fear and trembling? I am a licensed marriage and family therapist appointed as the court’s expert to conduct child custody evaluations, mediation, co-parenting counseling, and assess children for alleged abuse as the child’s court appointed therapist. I see separating parents together in my office when they would rather die than be in the same room as the other parent. I make recommendations to the court regarding child custody that are likely to anger and enrage at least one of the parents. I do this because the children need someone to stand up and be their advocate in court who can understand and evaluate the family dynamics, history, and risks to the child, and separate the false accusations made in anger from reality. This involves me in the drama of court subpoenas, depositions, and testifying in court and being cross examined by attorneys representing the parent who did not get what he/she wanted. I have been doing this for over twenty years and I have learned a lot of valuable lessons.

If you think that you will never be involved in the process of custody battles because you see individual adults or children, or do couples counseling, and none of your clients are currently going through divorce or litigation, think again. Even after you have terminated therapy with a client your records could be subpoenaed or you could be called to court to testify regarding the therapy if a one of the parents is trying to prove the other parent is unfit or if the information is requested by the court regarding a child’s therapy. One of my dear friends, a colleague who sees primarily women with symptoms of anxiety and/or depression, received a subpoena from her client’s ex-husband’s attorney. My friend called me in a panic because she never kept up much with her notes and documentation and all her records were subpoenaed along with her presence being demanded for deposition and court trial testimony. She is a very experienced therapist but had no experience in this arena. I gave her some helpful advice to get through the process and I believe the lessons I have learned the hard way may benefit other therapists, like you, as well.

The first thing you should know is that you are mandated to document your contacts with your clients. Every time you see a client there should be a dated entry. For your intake or initial session you should have a comprehensive history. Make sure you ask your clients about domestic violence and substance abuse. You do not need to put a lot of details for each session. There should be some content of what the client presents, your observations and assessments, what your treatment plan is and a list of any referrals made. If you consult with any other mental health professionals you should include that in your case record. Make sure you have a signed release from your client on file authorizing you to talk with anyone about his/her case before you do so, and make sure you keep it in the file.

If you do receive a subpoena for your records you do not automatically have to send a copy of your records to anyone. A subpoena is a request. There is a place to respond if you do not believe this would be in the best interest of your client and you wish to assert the privilege as your client’s therapist. You cannot ignore a subpoena or you could face legal sanctions. You should definitely consult an attorney if you do not know what to do. If you belong to CAMFT you can call and get free legal advice. If you are acting as the court appointed expert the court holds the privilege so this does not apply. If your client or their minor child is involved in a custody evaluation the judge will determine if you can withhold your records or if you must submit them. Before releasing your records to anyone you must contact your client to inform her/him about the subpoena. Your client may want to sign a release authorizing the disclosure to both attorneys. This could be helpful to your client if the other parent is accusing your client of being emotionally unstable or an unfit parent and there is nothing to substantiate this. What you write in your records could hurt or help your client depending on the situation. Remember that in custody evaluations the role of the court is to determine what is in the best interest of the child, not the parent.

You could receive a subpoena just for your records. Or you could be subpoenaed to appear in court or at a deposition in which case they want you to bring your complete record file and that will all be stated in the subpoena. Most malpractice insurance provides for an attorney to accompany you to a deposition. There is a limit on how much time they will be available and you will be asked to pay the attorney’s hourly fee after that time is up. The deposition normally takes place in an attorney’s office (not the courthouse). There will be a court reporter and you can get a transcript to review and make any changes to it after the deposition. You do not have any control over when the deposition or court trial is set or how much time will be required of you. If you are appointed as the court’s expert on the case then you will receive your hourly fee for expert testimony, otherwise you will not receive compensation for your time.

Understanding the process is important even if you never receive a subpoena. It will help you keep better case records and it may help you be a better therapist to an adult going through separation/divorce. When parents go to court to determine custody of their children it is because they don’t agree on what is best for the children. They may have valid concerns about the other parent or they may feel hurt and abandoned by the other parent and lash out with vindictive allegations about the other parent’s substance abuse, emotional instability and/or anything they can think of to make the other parent feel the same pain they are feeling which usually means they will try to keep the children from the other parent. Again, the court’s role is to determine what is in the best interest of the children. Judges rely on mental health professionals to determine if there is a risk to the child and/or whether or not the child has been abused or alienated by the parent.

If you see children in your practice it is imperative to get the permission of both parents in writing before agreeing to provide any treatment to a minor child. This applies until the minor reaches 18 years of age. I ask both parents to sign a contract unless one parent has sole legal custody. If one of the parents brings a child to treatment and the other parent is not informed he/she will probably find out when the child says something about going to counseling. You may have established a therapeutic relationship with the child that is beneficial to the child. Even so, the parent who was not consulted can go to court and demand that you stop seeing the child because he/she did not give consent for treatment. Judges will typically honor that request. Family Court encourages and supports children having a continuing relationship with both parents after separation/divorce. The judges rely on experts who are able to maintain a professional relationship with both parents regardless of how high conflict they are because that expert will have the full picture of what is going on in the family. If you see an individual adult or child it is never a good idea to write a letter to the court at your client’s request. The judge will view your letter as one-sided and biased.

If you are still wondering why any mental health professional would choose to do custody evaluations, assessments and therapy as a court appointed expert the answer is simple. I do it for the children. Most parents do not have the ability to focus on their children’s needs when they are in the tumultuous emotional upheaval of a high conflict separation/divorce. Most often they are hurt, angry, struggling to stay afloat financially and desperate not to lose their children. When there are allegations of domestic violence and/or child abuse it is imperative for the safety of the children that the judge has accurate, objective information to determine whether or not visitation needs to be supervised, how and where exchanges shall take place, and what custody schedule would be best for the children.

Randi Scalise Johnson MFT


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