An increasing number of complaints are being filed against therapists who are accused of overstepping their scope of practice because the therapist has provided a written statement to be used in a family court proceeding. Often, these written statements provide an opinion, diagnosis, or perception regarding family members who have not been seen and treated by the therapist. Moreover, the therapist providing the statement is not directly involved in the court proceeding and uses his/her professional title and licensure in the statement. The request can come from a client, friend, or attorney and seem innocent enough. Isn’t the very nature of our work assisting families? As a licensee, if you agree to the request, you may find yourself responding to a Board complaint alleging that your conduct is unprofessional.
Working with families who are going through a divorce is a very complex area of clinical practice and can be fraught with many legal landmines. You may be wondering what this has to do with you? A great number of therapists who interact with and/or treat any member of a family involved in a divorce or post-divorce matter are approached to provide a written opinion for their clients. These written opinions may subsequently be provided to the client’s attorney or directly to the court, which places you at risk for disciplinary action against your license.
Many well-meaning therapists have provided the court with written comments or opinions about individuals they have never met, worked with, or treated, because the therapist believes they are acting in the best interest of all involved parties. Some examples of opinions or comments resulting in disciplinary actions against licensees in this situation involve issues of character, parenting skills, diagnoses, which parent is better suited to be the primary caregiver, what the child has told you, or the child’s preferences toward their parent.
It is important to understand how the written statement will be used in a family court proceeding. The intent of a written statement from you, a licensed mental health professional, is to influence the court’s decision.
The courts have specific procedures that must be followed to determine custody for minor children. These procedures range from required training and licensure for the assigned evaluator to the report’s content. Therefore, if you provide a written statement using your professional expertise regarding an individual you have not treated or make a custody recommendation without the proper releases or authorization, you would be in violation of the Board’s Statutes and Regulations.
If you have not personally witnessed the behavior and you have been asked to provide an opinion by a client or an attorney, do not provide one. In a circumstance where you have direct knowledge of something, do not provide that information unless you have signed releases from ALL parties and have been asked by the court to provide an opinion. If what you know is that critical to the family, one of the parents can subpoena you and the court can decide if you should provide the information.
You need to take all possible precautions available to avoid falling into an ethical trap. This is especially relevant in not making a “best interest statement.” This statement can be interpreted as a professional opinion about who should have custody of the children. Only a court-ordered child custody evaluator can make that determination. You would be surprised how many colleagues have done this.
With so many families having divorce as part of their clinical profiles, you must be careful when providing a court-requested opinion. My best advice is that unless you have been treating someone for a while, do not provide a letter of any kind unless you have personally viewed all the symptoms you are commenting on. For example, provide in a letter dates of attendance, diagnosis, prognosis, and impression of the client. Stick to only the basics. Try not to comment on the other parent or their children unless you have a signed release to do so from both parents
Following some of these suggestions will protect you from a parent who is angry or making an unfounded accusation against you. These suggestions may save you from trying to help when it is against your best interest to do so. Remember, working with divorcing families can be volatile. It is their problem to solve. Do not become a victim of their dysfunction.
Should you be interested in developing clinical skills in forensic divorce and child custody matters, there are workshops available held by some of the larger Bar associations in conjunction with mental health professionals. Good resources can be found in specialty workshops offered by CAMFT, as well as online materials on the CAMFT website, in addition to the following organizations:
• California Chapter of the Association of Family and Conciliation Courts: [email protected]
• The national organization is based in Wisconsin: [email protected]
Special thanks to Kim Madsen, Executive Director of BBS, and David Jensen, J.D., of CAMFT for their input and support for this article. Terri Asanovich, LMFT, is in private practice in Sherman Oaks. She serves as a consultant on divorce issues to therapists and attorneys.
**Articles are appearing in the official State of CA licensing Newsletter**