Can My Child’s Therapist Testify in My Custody Case?

A “Child Privilege Attorney’”(known in short as a CPA) is an attorney who can be appointed by the Court on behalf of the minor child (or minor children) in contested custody actions when the child has undergone mental health treatment or therapy.

Just as adults enjoy privilege with mental health providers, children have a privilege with their therapist or psychiatrist.  The child’s private communications and treatment with their mental health professional cannot be disclosed to either parent or any third party absent a waiver of that privilege.

In contested custody cases where a child is seeing a mental health provider, the substance of that child’s communications with such provider, as well as the providers’ diagnoses and treatment recommendations, are all likely relevant to the custody proceedings and the court’s determinations.

In a contested custody case, a CPA can be appointed to speak with all treatment providers for the child.  The CPA can determine any areas of concern pertaining to custody, including communications between the provider and the child, and assess the level of trust established between the child and provider. The CPA then considers whether the disclosures and communications between the child and provider would help the court to make a determination regarding custody, balancing the need for trust, confidence, and privacy.

Waiving the child’s privilege with their provider would allow the parties and/or custody evaluator to learn the nature of the communications between child and provider.  Potentially, the provider could then be called to testify at a contested custody trial. If the child’s privilege is not waived by the CPA, the doctor-patient privilege protects the communications between child and provider, even if the provider is subpoenaed to testify.

Once a CPA determines whether to waive privilege, the CPA files a report with the court explaining their decision.  The work of the CPA is then done.  A CPA does not appear in court as a witness and, in fact, is not permitted to testify.  The appointment of a CPA can therefore be an inexpensive way for either party in a contested custody case to resolve a complicated issue and obtain a conclusive and binding decision as to the extent of their child’s mental health provider’s participation at any merits hearing.

Bulman Dunie lawyers, Meg Rosan, Esq., and Jane Rodgers, Esq., are both trained and regularly appointed as Child Privilege Attorneys.  Please feel free to contact either at mrosan@bulmandunie.com or jrodgers@bulmandunie.com respectively if you think a CPA could be helpful in your divorce case.