Therapists in Family Law

Therapists in Family Court: When It Makes Sense… and When It Does Not

By Fran Trelease

December, 2020

With the year we’ve all been through, it’s not surprising that licensed family therapists play a growing role in divorce and child custody cases here in New York and around the country. In most cases, that’s good news. But they’re brought in to litigation for varied reasons and motivations. Should they be part of your own family law case?

 Should You Bring Your Family Therapist to Court?

The answer is nuanced and not always clear cut. We do see family counselors playing larger roles in cases where the following are central:

⏯ Divorce and custody dispute resolution

⏯ Family relationships

⏯ A child’s welfare

Yet there are both pros and cons to weaving therapists into the process. Let’s break down a few of them, starting with some Benefits.

A Relief Valve When Tensions Run High

When family conflicts escalate, therapists can lower the flames by serving as a safe outlet for a client’s negative emotions. In many cases, more than one family member will see their own counselor to work with.

Often, a qualified, licensed counselor can keep channels of communication open between key parties or litigants. When family members walk away from fractured relationships, therapists can seek pathways to bring them back.

In most cases, the therapist you choose will be knowledgeable about laws and regulations that might differ by state, county or local region. (Make sure your therapist has that local expertise.)

Licensed therapists can become valued team members working to find the best outcome for all family members.

Yet there are caveats to be aware of, too. Here are some potential Pitfalls to watch for.

Can Your Therapist SAY That in Court?

Be cautious about therapists testifying when:

⏯ They show an overt bias toward their client over others. Not unusual, therapists typically bond with their clients, and are prone to support them over others

⏯ Privacy laws are involved. Therapists may be unwilling, or legally unable, to testify in court. (Be aware that subpoenas can override privacy laws.)

⏯ Your state has statutes or HIPPA agreements protecting client confidentiality. Often both parents need to sign HIPAA release forms to ensure the child’s privacy rights have been met.

⏯ They’re put in full control of child custody arrangements. Therapists often approach such arrangements slowly and with caution. That’s not a bad thing, but beware of cases that linger for weeks or months longer than they would otherwise. Judges may want to move your case along.

When Therapists Get Stuck in the Middle 

Can a family therapist testify in court if they don’t want to? While most would arguably prefer not to – they may be compelled to, as we mentioned earlier. Judges will sometimes order family or individual therapy if they see a need. But because each situation is different, know the reasons for any court-ordered therapy request.

⏯ While it’s not common, court-ordered therapy might be used to later assist with verdicts on a family member’s mental health or parenting abilities

⏯ Counselors may get asked to – or even pressured to – issue false claims or perpetuate lies that go beyond their own evaluations.

Family Law and Therapy: Are Your Rights Protected?

A therapist’s involvement in family law cases can make sense when legal boundaries and the legal process is respected. It behooves you to understand those processes if you’re not familiar. At the outset, make sure you understand what the therapist’s role and responsibilities will be.  Where children and custody rulings are involved, always have the child’s well-being front and center.

Christine Moccia is a divorce and family law specialist in Rye Brook, New York. She has more than 28 years of experience as a litigator, advocate, negotiator, and adviser. Christine has successfully helped clients in the areas of divorce, separation, mediation, custody, child and spousal support, and prenuptial / postnuptial agreements. Visit www.christinemoccial.com. Email: cmoccialaw@gmail.com. Phone:  (914) 902 – 3325