Mental Health Experts in Family Law: How They Work

If the mental health professional has been treating one of the parties, the issue of pretrial discovery of the professional's records may be raised. Generally speaking, these records are protected by a therapist-patient privilege recognized in all states. In determining whether or not to compel disclosure of these records, courts must balance the privacy rights of the parents against the interests of the court in having access to all relevant information necessary to determine the best interests of the child.

There are several different approaches taken to this question. Some states have specific statutory or evidentiary rule exceptions to the privilege when 'the mental state of a party is clearly at issue and a proper resolution of the custody question requires disclosure.' ALA R. Evid. Rule 503 (d) (5). Other states relying on the statutory factor that requires a court to 'consider the mental and physical health of all individuals involved' allow disclosure where there have been allegations of abuse or neglect.

At the far extreme are those courts that hold that once a party requests custody, he or she puts his or her mental status at issue and effectively waives the privilege. Finally, there are those courts that use a balancing test that focuses on the legitimate need for the evidence and the materiality and relevance of the mental health records to the issue of parenting. These courts also require that the person requesting the disclosure demonstrate that the evidence cannot be obtained from another source.

As a practical matter, some courts allow the professional's records to be submitted for an in-camera review by a judge who determines the relevance of the records. If the mental health treatment was remote or not relevant to the current custody issues, the privilege might prevent disclosure. Counsel should suggest such an arrangement, and an agreement to a stipulation on this process should be sought.

The issue of whether the treating therapist for a party may testify will again involve issues of waiver. If there is an implicit or statutory waiver, the therapist must testify when directed to do so by the court or when subpoenaed by the opposing party. If, on the other hand, the party wishes to call his or her own therapist to testify as to his or her mental status, a waiver in the courtroom should permit such testimony. This type of testimony may be helpful to the court if it helps to explain the party's reason for seeking mental health services. The treating therapist should not be asked and should not offer any opinion on custody or visitation when the treating mental health professional has seen only one party.

The availability of the child's therapist for testimony presents different issues. Sometimes, it will require a waiver from both parents, or from a person who has the ability to make medical decisions for the child. If the child is represented, the child's lawyer or guardian ad litem should be put on notice before any attempt is made to confer with the child's therapist or to subpoena the therapist. It should be kept in mind that the purpose for which the therapist is seeing the child is therapeutic, not forensic.

For the same reason, once litigation is instituted, the efficacy of an additional evaluation of the child is of dubious value. A second 'opinion' by a mental health professional who sees only the child without access to all of the parties is usually not relevant to the question of custody.

Why They Get Involved

Most frequently, a mental health professional becomes involved in child custody cases when directed to perform a custodial evaluation for the court. If the parties, through their counsel, stipulate to the appointment of a specific professional, one should remember that in effect the stipulating counsel are 'vouching' for the qualifications of that specific professional. While counsel retain the right to cross-examine the professional, judges sometimes feel that the very act of stipulating to an appointment creates some acquiescence in the ultimate findings. A better course of conduct may be for both parties to suggest several professionals and have the court make the final selection. Counsel can also leave the choice of the mental health professional to perform the evaluation to the court. But the danger here is that the court, having chosen the professional, is vouching for his or her credibility and may overvalue the importance of the ensuing recommendations.

No matter how a professional is selected to perform a custodial evaluation, it is important that there by a specific order setting forth the appointment terms and conditions. Such an order should address how the lawyers may have contact with the professional, how pleadings (if any) are to be provided to the professional, whether all lawyers (including the child's lawyer) should be included in conference calls with the professional, what issues the evaluation should address and whether the mental health professional is to make recommendations.

Who Gets the Report?

The court order appointing the professional should also include the allocation of financial responsibility for the professional's fees and expenses, and when those are to be paid. It should include details regarding the provision of copies of the report to all counsel and whether counsel may provide a copy to the clients. Counsel should request that the appointing order require the mental health professional to provide the report to the parties' counsel rather than directly to the court. The admission of the report itself will be subject to relevant rules of evidence. An attorney who wishes to keep the report from being introduced may argue that it is cumulative to testimony, although in most instances the report will be admitted into evidence.

Even if the evaluator has been selected by stipulation of counsel, the stipulation should include a provision allowing for objection to the admission of the report, and for reservation of the right to cross-examine the evaluator. Attorneys should familiarize themselves with the evaluation process. A good evaluation is one that focuses on the adult's competencies as a parent. It must also focus on those competencies in relation to the child in question because children differ in the demands they place on a parent. Basically, the evaluator is assessing the 'fit' between this particular child and the parent. See Baerger DR, et al.: A Methodology for Reviewing the Reliability and Relevance of Child Custody Evaluations. 18 J Am Acad Matrim Law, 2003.

In his book, 'Conducting Scientifically Crafted Child Custody Evaluations,' Jonathon Gould posits the theory that an appropriate framework for conducting a child-custody evaluation should include five data-gathering components: 1) a definition of the scope of the evaluation; 2) the use of forensic interview techniques; 3) psychological testing; 4) direct behavioral observations of the parent-child interactions; and 5) interviews with collateral sources and a review of relevant records.

There is a strong argument to be made that the court needs input from the mental health professional about the mental status of the child and the parties, and the 'fit' between the parties and the child. However, some attorneys argue that the evaluator's role by limited to providing information only. They suggest that, with respect to decision-making and a custodial schedule, it should ultimately be for the court and not a mental health professional to determine these issues.

Explaining the Process

Retained professionals may assist in custody cases in other ways. Counsel may initially wish to have a prospective client examined be a professional to make certain that the client understands the difficulties inherent in custody litigation. With the client's consent, the attorney can obtain information from the therapist as to the client's stability and any areas of concern. This will allow for better case and client preparation.

The same professional may continue to assist the client in preparing for the evaluation process by explaining the process and the client's role in it. The professional may then assist counsel in interpreting the results of the evaluation and reviewing the evaluator's notes and documents.

The retained mental health professional is usually permitted to be present in court when the evaluator (or any other mental health professional) testifies, or at least to have access to the transcript. In some instances, the retained mental health professional may testify in terms of a peer review of the evaluator's report and of the process undertaken by the evaluator. The professional in such a circumstance would have to be very conversant with all of the testimony by the appointed professional, all of the professional's report and records, as well as with all of the professional standards and guidelines governing the conduct of a custodial evaluation.

Conclusion

Finally, a mental health professional may be included in a custody agreement as either the treating therapist for a child, or as the person to whom the parties will turn in the future for assistance with custody-dispute issues. For instance, if the parties anticipate that there may be difficulties encountered about the child's future choice of extracurricular activities, they may indicate in an agreement that the selected mental health professional will be consulted.

Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City. Barbara Handschu is a sole practitioner based in Buffalo, NY. both are frequent contributors to this newsletter. The above article first appeared in The National Law Journal.

The roles of mental health professionals in child custody litigation are both varied and important. In these cases, there may be a treating professional for one of the parties, or there may be a therapist for the child. The court may appoint a mental health professional to conduct a custody evaluation.

One of the parties may hire a mental health professional as a consulting expert, retained to assist counsel by conducting a peer review of the evaluation performed by the appointed mental health professional. Each of these roles and the legal rules associated with them are discussed in this article.

Record Protected by Therapist-Patient Privilege

If the mental health professional has been treating one of the parties, the issue of pretrial discovery of the professional's records may be raised. Generally speaking, these records are protected by a therapist-patient privilege recognized in all states. In determining whether or not to compel disclosure of these records, courts must balance the privacy rights of the parents against the interests of the court in having access to all relevant information necessary to determine the best interests of the child.

There are several different approaches taken to this question. Some states have specific statutory or evidentiary rule exceptions to the privilege when 'the mental state of a party is clearly at issue and a proper resolution of the custody question requires disclosure.' ALA R. Evid. Rule 503 (d) (5). Other states relying on the statutory factor that requires a court to 'consider the mental and physical health of all individuals involved' allow disclosure where there have been allegations of abuse or neglect.

At the far extreme are those courts that hold that once a party requests custody, he or she puts his or her mental status at issue and effectively waives the privilege. Finally, there are those courts that use a balancing test that focuses on the legitimate need for the evidence and the materiality and relevance of the mental health records to the issue of parenting. These courts also require that the person requesting the disclosure demonstrate that the evidence cannot be obtained from another source.

As a practical matter, some courts allow the professional's records to be submitted for an in-camera review by a judge who determines the relevance of the records. If the mental health treatment was remote or not relevant to the current custody issues, the privilege might prevent disclosure. Counsel should suggest such an arrangement, and an agreement to a stipulation on this process should be sought.

The issue of whether the treating therapist for a party may testify will again involve issues of waiver. If there is an implicit or statutory waiver, the therapist must testify when directed to do so by the court or when subpoenaed by the opposing party. If, on the other hand, the party wishes to call his or her own therapist to testify as to his or her mental status, a waiver in the courtroom should permit such testimony. This type of testimony may be helpful to the court if it helps to explain the party's reason for seeking mental health services. The treating therapist should not be asked and should not offer any opinion on custody or visitation when the treating mental health professional has seen only one party.

The availability of the child's therapist for testimony presents different issues. Sometimes, it will require a waiver from both parents, or from a person who has the ability to make medical decisions for the child. If the child is represented, the child's lawyer or guardian ad litem should be put on notice before any attempt is made to confer with the child's therapist or to subpoena the therapist. It should be kept in mind that the purpose for which the therapist is seeing the child is therapeutic, not forensic.

For the same reason, once litigation is instituted, the efficacy of an additional evaluation of the child is of dubious value. A second 'opinion' by a mental health professional who sees only the child without access to all of the parties is usually not relevant to the question of custody.

Why They Get Involved

Most frequently, a mental health professional becomes involved in child custody cases when directed to perform a custodial evaluation for the court. If the parties, through their counsel, stipulate to the appointment of a specific professional, one should remember that in effect the stipulating counsel are 'vouching' for the qualifications of that specific professional. While counsel retain the right to cross-examine the professional, judges sometimes feel that the very act of stipulating to an appointment creates some acquiescence in the ultimate findings. A better course of conduct may be for both parties to suggest several professionals and have the court make the final selection. Counsel can also leave the choice of the mental health professional to perform the evaluation to the court. But the danger here is that the court, having chosen the professional, is vouching for his or her credibility and may overvalue the importance of the ensuing recommendations.

No matter how a professional is selected to perform a custodial evaluation, it is important that there by a specific order setting forth the appointment terms and conditions. Such an order should address how the lawyers may have contact with the professional, how pleadings (if any) are to be provided to the professional, whether all lawyers (including the child's lawyer) should be included in conference calls with the professional, what issues the evaluation should address and whether the mental health professional is to make recommendations.

Who Gets the Report?

The court order appointing the professional should also include the allocation of financial responsibility for the professional's fees and expenses, and when those are to be paid. It should include details regarding the provision of copies of the report to all counsel and whether counsel may provide a copy to the clients. Counsel should request that the appointing order require the mental health professional to provide the report to the parties' counsel rather than directly to the court. The admission of the report itself will be subject to relevant rules of evidence. An attorney who wishes to keep the report from being introduced may argue that it is cumulative to testimony, although in most instances the report will be admitted into evidence.

Even if the evaluator has been selected by stipulation of counsel, the stipulation should include a provision allowing for objection to the admission of the report, and for reservation of the right to cross-examine the evaluator. Attorneys should familiarize themselves with the evaluation process. A good evaluation is one that focuses on the adult's competencies as a parent. It must also focus on those competencies in relation to the child in question because children differ in the demands they place on a parent. Basically, the evaluator is assessing the 'fit' between this particular child and the parent. See Baerger DR, et al.: A Methodology for Reviewing the Reliability and Relevance of Child Custody Evaluations. 18 J Am Acad Matrim Law, 2003.

In his book, 'Conducting Scientifically Crafted Child Custody Evaluations,' Jonathon Gould posits the theory that an appropriate framework for conducting a child-custody evaluation should include five data-gathering components: 1) a definition of the scope of the evaluation; 2) the use of forensic interview techniques; 3) psychological testing; 4) direct behavioral observations of the parent-child interactions; and 5) interviews with collateral sources and a review of relevant records.

There is a strong argument to be made that the court needs input from the mental health professional about the mental status of the child and the parties, and the 'fit' between the parties and the child. However, some attorneys argue that the evaluator's role by limited to providing information only. They suggest that, with respect to decision-making and a custodial schedule, it should ultimately be for the court and not a mental health professional to determine these issues.

Explaining the Process

Retained professionals may assist in custody cases in other ways. Counsel may initially wish to have a prospective client examined be a professional to make certain that the client understands the difficulties inherent in custody litigation. With the client's consent, the attorney can obtain information from the therapist as to the client's stability and any areas of concern. This will allow for better case and client preparation.

The same professional may continue to assist the client in preparing for the evaluation process by explaining the process and the client's role in it. The professional may then assist counsel in interpreting the results of the evaluation and reviewing the evaluator's notes and documents.

The retained mental health professional is usually permitted to be present in court when the evaluator (or any other mental health professional) testifies, or at least to have access to the transcript. In some instances, the retained mental health professional may testify in terms of a peer review of the evaluator's report and of the process undertaken by the evaluator. The professional in such a circumstance would have to be very conversant with all of the testimony by the appointed professional, all of the professional's report and records, as well as with all of the professional standards and guidelines governing the conduct of a custodial evaluation.

Conclusion

Finally, a mental health professional may be included in a custody agreement as either the treating therapist for a child, or as the person to whom the parties will turn in the future for assistance with custody-dispute issues. For instance, if the parties anticipate that there may be difficulties encountered about the child's future choice of extracurricular activities, they may indicate in an agreement that the selected mental health professional will be consulted.

Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City. Barbara Handschu is a sole practitioner based in Buffalo, NY. both are frequent contributors to this newsletter. The above article first appeared in The National Law Journal.