Keep the Therapists Out of It!

It seems obvious: If you want to know about a litigant's mental state or a child's psychological needs, ask the litigant's or child's therapist. Wrong! There are good reasons not to confuse treating-therapists with expert witnesses. The testimony of treating-therapists rarely contributes to the litigation and calling on the treating-therapist will usually destroy therapy. Here are some reasons why, in my opinion:

Treating-Therapists Are Poor Witnesses

Treating-therapists' testimony is seldom probative, often irrelevant and prejudicial, and it is likely to be poorly presented. Unlike an expert witness, therapists have only the information patients give them. They rarely check against other sources; they generally remain allied with patients by only doubting patients' reports under special circumstances. Basically, all they can testify to is what the patient thinks. Furthermore, therapy is designed to let patients try on various attitudes and ideas, so patients often express strong opinions to their therapists that they would not stick by in real life. Patients often want to please their therapists and may also express views that mirror the therapist's. This is particularly a problem when it comes to children's custody wishes. The therapist may unwittingly be getting information designed to please him or her rather than reflecting the child's own ideas and opinions.

The unreliability of treating-therapists' reports is so great that expert opinion and ethics codes converge in recommending that treating-therapists not testify as experts about their patients.

The troubles with treating-therapists' testimony do not end there. Therapists collect all sorts of irrelevant information about patients. They naturally focus on areas of trouble. They have tons of information on topics ranging from sexual fantasies to attitudes toward the boss. They almost always must make a psychiatric diagnosis for administrative use or insurance purposes. Almost none of this is pertinent to anything before the court, but it can confuse matters and may be prejudicial. Who would want to put some poor child in the care of an individual with “generalized anxiety disorder” or someone who dreams of sex with muscular leather-clad women in high heels, even though these things have nothing to do with child care?

That therapists really want to help their patients often makes matters worse. They often think their role is convincing the judge that their client is right. They make speeches; they “bend the truth” to favor the patient (occasionally this gets to the point of out-and-out perjury); they try to tell the court what the law should be and generally make poor witnesses. I have known very good therapists who have “forgotten” everything they knew about the patient in an effort to protect him or her. Most therapists are not only inexperienced as witnesses, they are extremely uncomfortable in this role. The net effect is that they are unlikely to be credible.

Testimony Hurts Therapy

Therapy requires privacy. People cannot talk about their deepest feelings and thoughts unless they are confident that what they say will remain confidential. As the U.S. Supreme Court acknowledged in Jaffe v. Redmond, 518 U.S. 1; 116 S. Ct. 1923(1996) having one's treatment become part of court proceedings destroys privacy and, with it, therapy. Would a reasonable person reveal all the confusions, doubts and mixed feeling that are inevitable in divorce knowing they would be revealed in court? And if a person had made such revelations believing they would be held in confidence is it fundamentally fair that they be revealed in court?

When therapists testify against patients' interests or even when their testimony is ineffective, the therapist-patient relationship is usually irreparably harmed. It's hard to feel someone is “on your side” after that person's testimony has lead to your losing custody or the financial support you think you need to survive.

Children whose parents are struggling inevitably feel “caught in the middle.” For them, therapy can be the only place where life is not dominated by loyalty conflicts. When their therapists are pulled into litigation, children have to shape everything in terms of how it will come out in court. They lose the one safe place where they are free to think for themselves.

The Bottom Line

With rare exceptions (Ms. Jones is a mass murderer but only her therapist knows it), treating-therapists have no place in divorce litigation. Don't call them. At best they muddy the waters; at worst someone loses much-needed treatment at a critical time. Oppose the other side's calling them for the same reasons. If possible, obtain stipulations that exclude information from treating therapists from the litigation. Educate judges, who too often mistakenly believe that therapists know the “truth” about their patients, about the pitfalls of therapists' testimony. In many jurisdictions mental health codes stringently protect mental health records. Learn these codes and use them to protect everyone in the divorce from having a treating therapist testify.

It seems obvious: If you want to know about a litigant's mental state or a child's psychological needs, ask the litigant's or child's therapist. Wrong! There are good reasons not to confuse treating-therapists with expert witnesses. The testimony of treating-therapists rarely contributes to the litigation and calling on the treating-therapist will usually destroy therapy. Here are some reasons why, in my opinion:

Treating-Therapists Are Poor Witnesses

Treating-therapists' testimony is seldom probative, often irrelevant and prejudicial, and it is likely to be poorly presented. Unlike an expert witness, therapists have only the information patients give them. They rarely check against other sources; they generally remain allied with patients by only doubting patients' reports under special circumstances. Basically, all they can testify to is what the patient thinks. Furthermore, therapy is designed to let patients try on various attitudes and ideas, so patients often express strong opinions to their therapists that they would not stick by in real life. Patients often want to please their therapists and may also express views that mirror the therapist's. This is particularly a problem when it comes to children's custody wishes. The therapist may unwittingly be getting information designed to please him or her rather than reflecting the child's own ideas and opinions.

The unreliability of treating-therapists' reports is so great that expert opinion and ethics codes converge in recommending that treating-therapists not testify as experts about their patients.

The troubles with treating-therapists' testimony do not end there. Therapists collect all sorts of irrelevant information about patients. They naturally focus on areas of trouble. They have tons of information on topics ranging from sexual fantasies to attitudes toward the boss. They almost always must make a psychiatric diagnosis for administrative use or insurance purposes. Almost none of this is pertinent to anything before the court, but it can confuse matters and may be prejudicial. Who would want to put some poor child in the care of an individual with “generalized anxiety disorder” or someone who dreams of sex with muscular leather-clad women in high heels, even though these things have nothing to do with child care?

That therapists really want to help their patients often makes matters worse. They often think their role is convincing the judge that their client is right. They make speeches; they “bend the truth” to favor the patient (occasionally this gets to the point of out-and-out perjury); they try to tell the court what the law should be and generally make poor witnesses. I have known very good therapists who have “forgotten” everything they knew about the patient in an effort to protect him or her. Most therapists are not only inexperienced as witnesses, they are extremely uncomfortable in this role. The net effect is that they are unlikely to be credible.

Testimony Hurts Therapy

Therapy requires privacy. People cannot talk about their deepest feelings and thoughts unless they are confident that what they say will remain confidential. As the U.S. Supreme Court acknowledged in Jaffe v. Redmond , 518 U.S. 1; 116 S. Ct. 1923(1996) having one's treatment become part of court proceedings destroys privacy and, with it, therapy. Would a reasonable person reveal all the confusions, doubts and mixed feeling that are inevitable in divorce knowing they would be revealed in court? And if a person had made such revelations believing they would be held in confidence is it fundamentally fair that they be revealed in court?

When therapists testify against patients' interests or even when their testimony is ineffective, the therapist-patient relationship is usually irreparably harmed. It's hard to feel someone is “on your side” after that person's testimony has lead to your losing custody or the financial support you think you need to survive.

Children whose parents are struggling inevitably feel “caught in the middle.” For them, therapy can be the only place where life is not dominated by loyalty conflicts. When their therapists are pulled into litigation, children have to shape everything in terms of how it will come out in court. They lose the one safe place where they are free to think for themselves.

The Bottom Line

With rare exceptions (Ms. Jones is a mass murderer but only her therapist knows it), treating-therapists have no place in divorce litigation. Don't call them. At best they muddy the waters; at worst someone loses much-needed treatment at a critical time. Oppose the other side's calling them for the same reasons. If possible, obtain stipulations that exclude information from treating therapists from the litigation. Educate judges, who too often mistakenly believe that therapists know the “truth” about their patients, about the pitfalls of therapists' testimony. In many jurisdictions mental health codes stringently protect mental health records. Learn these codes and use them to protect everyone in the divorce from having a treating therapist testify.