PRACTICE ADVISORY:
PRACTICING WITH CHILDREN AND FAMILIES IN MASSACHUSETTS WHERE PARENTS MAY BE SEPARATED, DIVORCED, OR NEVER MARRIED

Adopted July 20, 2012 at a regularly scheduled meeting of the Board of Allied Mental Health and Human Service Professionals

Due to the large number of telephone calls, complaints and other inquires from both licensees and parents in this area of practice, the Board of Registration of Allied Mental Health and Human Service Professionals wishes to advise licensees of the following information related to the practices of licensed mental health counselors, licensed marriage and family therapists, licensed educational psychologists, and licensed rehabilitation counselors (collectively “licensees”) with children and families in the process of separation-divorce, never married, or post-divorce. Given that this policy deals with issues of confidentiality and testimonial privilege, and potential exceptions thereto, licensees are strongly advised to seek consultation from knowledgeable persons, including legal counsel in an appropriate circumstance:

  1. It is very important for licensees engaged in treatment of a minor child whose parents are separated or divorced, or who were never married to each other, to understand the custodial rights that each parent has. Under the law, terms like “physical custody” and “legal custody” have specific meanings that are highly relevant to a professional treating a child.
  2. The child-client whose parents are divorced or in the process of divorce has his or her own confidentiality rights and evidentiary privilege with respect to his or her relationship with the therapist. In other words, a licensee may not divulge the substance of what the child client has discussed either orally or by release of written records just because a parent asks for this information. This information may only be released with a court order or with the signed, informed consent of a mature minor. As stated by the Massachusetts Supreme Judicial Court in the 1987 case Adoption of Diane, “[W]here the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent’s ability to further the child’s best interests, it would be anomalous to allow the parent to exercise the privilege on the child’s behalf.” This case law has been interpreted further to mean that confidential information provided by the child in a psychotherapy environment, including a copy of the child’s record, should not be released to either parent or to the court, even with a signed release from one or both parents. Only the court can waive the child’s privilege and/or make a determination as to the release of confidential psychotherapy records, and Probate courts can and do appoint special guardians ad litem to decide this question for a child.
  3. Child therapists should refrain from initiating therapy with a child without the consent of both parents, unless there are legitimate protective issues relating to the child or other mitigating circumstances. Reaching out to the parent who did not initiate treatment for the child is a best practice that can help the therapist understand all sides of the child’s family situation and protect against being perceived as biased or allied with one parent.
  4. Sole legal custody is rarely awarded in Massachusetts except in circumstances in which one parent has died, there are protective issues, or the parents were never married. In these cases, the licensee should inquire as to the circumstances of the family before deciding whether to reach out to the non-custodial parent for his/her consent and involvement in the treatment.
  5. Psychotherapy and child custody evaluation are two very distinct services with different roles and responsibilities. “[Licensees] conducting a child custody evaluation with their current or prior psychotherapy clients and [licensees] conducting psychotherapy with their current or prior child custody examinees are both examples of multiple relationships.” (Guidelines for Child Custody Evaluations in Family Law Proceedings, 2010). The same individual should not undertake both roles.
  6. A child therapist should not write evaluative reports to lawyers or the court. Factual reports (providing information regarding the existence of the therapeutic relationship) should be provided only in response to a court order and only after legal consultation.
  7. A child custody evaluation is a specialized area of practice. In general, such forensic evaluations are conducted by court order and are assigned to specialized practitioners who have been certified in this area and are on the court’s list of approved providers, known as “Category E Guardians ad Litem.” A comprehensive set of standards apply to evaluative child custody investigations.
  8. A therapist for a parent should not write evaluative reports or make custody-visitation recommendations for use in court. Additionally, therapists should never submit evaluative letters or reports regarding the spouse or partner of their patient.
  9. It is advisable for licensees to communicate to parents prior to initiating treatment with a child, preferably in an informed consent document signed by all parties, that confidential information will not be released to the parent.

Working therapeutically with children in separated, divorced, or unmarried families requires a higher level of expertise, training, and consultation than working with children in intact families. It is good practice, whenever one is in doubt about how to proceed, to seek consultation with experts or with an attorney familiar with this work.