When Courts Seek to Enter the Therapy Room

Treatment notes may be of interest when custody is an issue in divorce cases.

Reviewed by Monica Vilhauer Ph.D.

Therapists work hard to establish a bond so that patients feel safe and confident in exposing and exploring their most private feelings, memories, mistakes, and experiences—sometimes embarrassing or painful. But what happens when they are asked to provide their treatment notes in custody litigation? The idea runs counter to the entire premise of therapy: How can patients engage if their self-disclosures might be used against them in court? Aren’t those notes privileged?

The law creates privileges for a wide range of medical and mental health professionals, including psychiatrists, psychologists, therapists, social workers, and other counselors. However, like other legal privileges, the therapist-patient privilege is not absolute and can be overridden. This happens most often when children are involved. For example, in child protective proceedings in New York, the law nullifies many privileges, including those for physicians, psychologists, social workers, and rape crisis counselors. Determining whether a child has been abused or neglected is deemed more important than therapeutic privacy.

Concerns for the welfare of children are also paramount in custody proceedings. However, courts have the discretion to take a somewhat nuanced approach in deciding whether the therapy room will be invaded. In a custody dispute, parents are viewed as having waived their therapist-patient privilege. Simply “by contesting custody,” courts have ruled, parents put their “mental and emotional well-being in issue,” allowing judges to decide on a case-by-case basis whether therapy notes may be subpoenaed and potentially placed into evidence at trial.

This is not to say that judges are eager to expose the content of litigants’ therapy—very much the contrary. The need to reveal the truth when determining child custody must be balanced against the damage that such exposure might cause.

In my 25 years as a family law attorney, I’ve seen judges routinely encourage parents to be in therapy, particularly during custody proceedings. Courts want to see that parents understand their own weaknesses and limitations and are prepared to address them. They want to see parents getting the support they deserve and need. I’ve been asked many times by clients whether they should stay out of therapy because it might make them look “sick,” “weak,” or “damaged.” The opposite is true; a consistent commitment to therapy tends to reflect very well on parents in court. At my firm, we routinely recommend therapy to clients going through difficult divorces and custody proceedings.

Even a parent with a serious mental illness, such as schizophrenia, if compliant with medication and dedicated to self-care, may turn what is feared to be a deficit into an asset in custody litigation. Judges know that therapy is important and helps litigants move forward, and they are not eager to discourage it.

Although the therapist-patient privilege may technically be waived in a custody case, a judge can still deny a request for disclosure of therapy notes. In New York, for example, a parent who seeks disclosure of the other parent’s therapy notes must convince the judge why those notes are necessary. General assertions will not suffice. Is there a particular psychological or emotional issue that the notes might clarify? Can other evidence address that issue? It is entirely possible that the request for disclosure of notes will be denied.

Sometimes a judge will allow production of therapy notes “in camera,” meaning the notes will be given only to the judge. The judge will review the notes and decide whether they are important enough to be disclosed at trial, considering the potential harm disclosure might cause.

If a therapist receives a subpoena, it is certainly worth inquiring whether a compromise can be reached to shield the notes. Perhaps the therapist can offer general observations instead. Can the notes be produced only for the judge’s review? In some cases, a judge might quash the subpoena entirely or modify it to be less broad.

Judges may also decide that, instead of producing notes, the therapist will testify at trial. The therapist may provide general impressions and information: Does the parent attend therapy consistently? Do they use therapy appropriately to address parenting issues? Are they open to suggestions for addressing difficult parenting moments? Have they worked on reducing anger or resentment toward the other parent? Such topics can be covered in testimony without revealing the specifics of patient self-disclosures or session notes. Ultimately, it is up to the judge in each case to define what will be allowed.

I’ve never met a clinical mental health professional who wanted to testify in court, but counselors should realize that they may be in a unique position to advocate for their patients. Perhaps no one knows the parent as well as their therapist and can highlight the parent’s strengths with authority. The therapist can contextualize weaknesses and confirm the parent’s insight and sincere efforts to address them.

A custody case must proceed very far before disclosure of therapy notes is even discussed. In New York, most courts will not consider disclosure of therapy notes until the eve of trial and may still hold them in camera for some time. In my experience, the production of therapy notes is rare.

More commonly, a therapist may be asked to speak to a forensic custody evaluator earlier in the process. Usually, this involves a 15- to 30-minute telephone call with the court-appointed mental health professional. Again, the content tends to consist of general impressions, and the treating therapist can advocate for their patient’s strengths and contextualize areas for growth. A report of sincere efforts in therapy can make a positive impression.

For therapists treating children, especially a child at the center of a parental dispute, the sensitivities around exposing therapeutic confidences are even greater. Courts and lawyers generally try to avoid involving a child’s current therapist, as the therapy is often a precious, safe space. No one wants a proceeding to determine the “best interest of the child” to cause more harm than necessary.

A child’s therapist who receives a subpoena should first determine whether the child has an attorney or guardian ad litem and whether they consented to the subpoena. If not, the attorney or guardian may advocate against disclosure. If the child lacks representation, the therapist might suggest appointing one.

When the child’s lawyer opposes a subpoena, the court is likely to nullify it. If the court finds compelling reasons for input from the child’s therapist, it may permit disclosure in an attenuated fashion, such as through general observations conveyed to a forensic evaluator. As always, the judge will decide the extent of disclosure, whether it involves notes, testimony, or both.