Informed Consent DiscussionAbout Clinician Involvement in Divorce and Custody Cases

To avoid being asked to support a client’s position in letters to the Court or in testimony before a court, mental health counselors need to explain to prospective clients the limitations on their role in divorce and custody litigation. This can be done in any treatment contract or informed-consent form used by counselors. Clinicians can make a disclosure that essentially states as follows:

“If you are involved in domestic litigation or become a party to a divorce or custody action, you agree that you will not call me to court to testify. Courts appoint professionals who have had no prior contact with a family to conduct custody evaluations and to make recommendations to the Court. As a clinician, it is my role to provide treatment, and not to make recommendations to courts in domestic matters. It is my policy not to testify in such cases, because experience has shown that the professional relationship is often harmed when counselors testify in divorce and custody cases. By signing this form, consenting to treatment, you agree not to call me as a witness in domestic litigation.”

Note that if a therapist is subsequently served with a subpoena to appear in court and to testify in a custody case, an agreement of this sort is not legally binding. However, this agreement does put an end to any expectations of the client that a therapist will automatically write letters of support to judges or testify in court in support of the client’s position.

[Adapted From: Denis K. Lane, Jr., JD (2007, July/August) Avoid Risks in Divorce and Custody Litigation. The Advocate, American Mental Health Counselors Association, p. 10. ]