If you’re in the middle of a contentious divorce, you may wonder if your child’s therapist could help your case. A common assumption is that a mental health professional who knows your child can offer an objective opinion about how your child feels and whom they want to live with.
That said, after years of litigating difficult custody cases, I’ve found that calling your child’s therapist as a witness is not always a good idea. You and your attorney must consider several questions before taking this significant step.
Will It Help?
The child’s therapist can offer valuable testimony on several key points, including the following:
- The child’s custody and visitation preferences
- Whether the child trusts one parent more than the other
- Any fear or discomfort the child has toward a parent
The first question your lawyer must consider is whether the testimony of your child’s therapist will help your case. You may believe you know what the therapist would say, but can you be sure?
Even if you’re confident that the therapist’s testimony would help your case, the next question is whether they are willing to testify.
Will the Therapist Be a Reluctant Witness?
Many therapists are reluctant to participate in a divorce case. Their priority is to help and protect the child, and they may not see testifying in court as being in the child’s best interest. A hostile or reluctant witness can hurt or weaken your case, no matter what they say on the stand.
How Will the Court View This Testimony?
The court may not allow your lawyer to call your child’s therapist to the stand and may even view the attempt to call the therapist in a negative light.
In the case of Forrestel v. Forrestel, for example, the court did not allow the mother to call the child’s therapist to testify because the child’s attorney had not agreed to the disclosure of information the child had given their therapist in confidence.
Although you may be able to obtain a HIPAA release or even compel the therapist to testify, the court might see this as prioritizing the parent’s interests over the child’s well-being, which is not the court’s goal in a child custody case.
The Court Decides the Custody Arrangements
In the end, the court will decide the custody arrangements based on the best interests of the child, but testimony by your child’s therapist can sometimes help inform the court’s decision. However, it can also threaten the therapeutic relationship between the therapist and the child because now you are placing your child’s therapist in the middle of your litigation.
You and your lawyer should carefully consider all the pros and cons before calling the child therapist to the witness stand.
And, as I always say, be sure to take care of yourself and your family during this difficult time.
These opinions should not be considered legal advice, as each case is unique. If you’re navigating a similar situation, please contact a family law attorney in your area for personalized guidance.