My child’s therapist wrote a letter for court. Can we show it to the judge?
Many times, parents have asked me if we can bring a therapist letter for child custody disputes to court. Some therapists feel comfortable putting their concerns or opinions in writing and these letters can seem to support a particular outcome. However, the medical and therapy records of children are privileged and not admissible in court without following certain procedures.
Children’s communications with therapists are confidential, and the courts will endeavor to protect them from disclosure. Confidentiality is critical for the child to feel safe and secure in the relationship so that he or she can be honest and get the most out of therapy, and to continue counseling sessions. When a parent wants to introduce a child’s therapy records or information that would pierce the therapist’s duty of confidentiality to her patient (the child) the court may appoint a special guardian to waive privilege. The role of the guardian is to investigate whether the therapist/patient privilege should be waived and there should be exceptions to confidentiality The GAL has to decide whether the records are so important to the court’s determination that the value of revealing them outweighs the patient’s interest in confidentiality. A GAL is often used in a high conflict divorce.
Letters from a Therapist to Court
Where a therapist has written a letter specifically for litigation in a custody matter, the parent who has the letter should be extremely cautious. Many judges will view such a letter as unethical and form a quick negative impression of the particular therapist.
If a therapist has an opinion and feels that the court should consider it, the court can appoint a guardian to waive the privilege or an ARC (attorneys representing children) attorney to amplify the children’s voices. In rare, complex custody matters, a judge will hear directly from a child about their preferences. This is uncommon, and a last resort, as the courts prefer to keep children out of the courthouse for their protection.
Medical Records
Medical records, while also confidential, can be admitted to the court as long as a custodial parent has given consent. However, if these records are going to be introduced at trial, the person seeking to use them must first give notice to the opposing party in accordance with Massachusetts law, G.L. c. 233 sec. 79G.
The Bottom Line
Typically the question of involving a child’s therapist comes up in custody dispute cases, where one parent believes the other parent is unfit for parenting. Whether the goal is to reduce one parent’s time, change legal custody or implement supervised visits, a party wanting to involve a therapist typically believes that the child’s therapist will bolster their case.
Many parents understand and accept that when testifying in court or at a custody trial it can quickly become a “he said/she said” situation where the judge will decide a case on credibility, so the desire to bring in another neutral voice is understandable. The problem goes back to the goal of the proceeding. For a judge to rule on custody in favor of one parent over another there needs to be a good reason to do so. The court’s basic principle when it come to custody disputes is to put the child’s best interest first.
One of the primary beliefs many judges hold is that having both parents in a child’s life is of significant importance. Much effort is made to keep both parents involved in the child’s life. This means that the reason to reduce one unfit parent’s time or authority must be a serious one. Examples that may not be great arguments to change custody include: complaints that one parent allows too much screen time; does not provide good enough emotional support; a child is yelled at; a parent uses substances like alcohol or cannabis with no direct link to that causing an inability to safely parent. The above issues are not necessarily good for a child, but they usually will not outweigh the importance of both parents being involved in the child’s life, imperfect as one parent may be.
Taking custody away from one parent does happen if it is in the best interest of the child. Physical or sexual abuse, and drug or alcohol abuse are factors that would allow a judge to change custody. The majority of the time in family law the facts are not black and white and lie somewhere between the two extremes above. This is where establishing a pattern becomes the strongest argument.
A child may be exposed to many unhealthy things over time, and if those unhealthy things cause a child to have problems in their life a pattern can be established and supported. Typically if a child is struggling there will be effects that can be seen in their grades and social life, which schools can report on. In addition to schools there may be other caretakers in the child’s life that notice negative effects such as coaches or doctors. Sometime situations can escalate to emergency room visits and police involvement These examples all will typically have a paper trail- bad grades, suspensions, medical notes, etc. that can show that the behavior of one parent is effecting a child.
In these situations there is often a therapist involved, and so the question comes up- do we involve the therapist in the court proceedings? The answer is generally no. Most judges do not want to break the therapist-child relationship, and if the only supporting evidence in a custody dispute or argument for sole custody is that of a letter from a therapist, it is typically not enough to change custody. If a problem is a pattern, and the problem effects the child in many facets of their life, there is typically enough to bring to the judge that a therapist is not needed.