Therapists as Witnesses

Vol. 4, No. 11

Robert A. Simon, Ph.D., is a national leader in forensic psychology consulting. Based in San Diego, CA, Dr. Simon is retained by attorneys throughout the county to consult on their cases and to provide expert witness testimony. Dr. Simon is a member of the Board of Directors of the Association of Family & Conciliation Courts and serves on the editorial board of the Family Court Review. He is a member of the Committee on Professional Conduct and Responsibility of the California Bar Association and a former member of the Ethics Committee of the California Br Association. He is the coauthor of the book Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation and Expert Testimony. Dr. Simon has also published articles in scholarly journals and is a regular contributor to the Section of Family Law Newsletter published by the ABA.

 

It is common in complex child custody cases for members of the family to have therapists or be ordered into therapy by the court. Often, children’s therapists are put into place to provide the court with information about a child’s opinions, preferences and wishes. Children’s therapists are also put into place to assist children’s coping with the impact of the conflict between therapists. Adults are often ordered into therapy to assist them with things such as parenting skills, anger issues, communication issues, and coparenting issues. These are all good reasons for parents and children to go into therapy. Without doubt, to the extent that members of a family are assisted in therapy, the need for the family courts to intervene, weigh in, and make orders can diminish. When families take back control over the course of their lives rather than requiring the court to make orders, the family and its members benefit.

Frequently, when individuals volunteer for therapy or are ordered into therapy, the court wants to hear form the therapist about the progress being made in therapy, what goals have been accomplished, what goals remain unmet, and what other goals might make sense. Intuitively, this makes sense. However, there are some important risks that must be recognized when therapists become witnesses or are otherwise asked to report back to the court with regards to therapeutic progress and the content of therapy.

Families involved in child custody disputes are high-use consumers of therapeutic services for many good reasons. Child custody disputes are stressful. Child custody disputes often result from psychological and psychosocial problems in families and members of the family. It is important that those involved in these disputes—both adults and children—have access to and make use of psychotherapeutic services. However, when therapists are asked to testify or otherwise provide input to the court with regard to the services provided and progress being made, the psychotherapist-patient privilege is threatened and in many cases waived altogether. When those involved in psychotherapy realize that their therapist will be asked and/or required to give input into the litigation process, the motivation to be fully honest, fully invested and truly involved in the therapy process can be diminished. When therapy clients know that the therapy is not fully confidential, the degree of trust and rapport developed with the therapist is impacted and not for the better. When therapists become involved in litigation, there is motivation for those receiving services to use therapy to posture, position, and create appearances. Further, when therapists are asked to weigh in, particularly when they are given the authority to decide, for example, when a child is ready for expanded parenting time with a parent or when a parent can safely parent a child without the presence of a supervisor, the therapy itself can become a surrogate forum for litigation rather than being a safe place for the revealing of self, the acquisition of new skills, and the solving of problems. It is also important to realize that therapists, by training and often by temperament, align themselves with their clients. They can easily become subtly biased in favor of their client, often without fully recognizing and appreciating this bias. To be sure, therapists want to provide services and are therefore motivated to keep their clients in therapy so that the client can “get better.” Therapists who, upon testifying, reveal their clients weaknesses, vulnerabilities, problems, and shortcomings run the risk of upsetting the client and of having the client choose to terminate services. Therefore, it is probably best to think of therapists who take the witness stand as presenting with a predictable, understandable, yet important bias.

The foregoing having been stated, therapists are an important tool and asset in child custody disputes. While there are inevitable complexities and problems when therapists become witnesses, this is not something that can be or necessarily should be avoided. Instead, the alert family law attorney and the alert family law judicial officer need to be aware of the plusses and minuses of therapists as witnesses. With this awareness firmly in hand, more effective use can be made of therapists as witnesses, and more well-informed decisions can be made by judicial officers about how to weigh and utilize the input and testimony from therapists.

 

Note

The article originally appeared in the January 2014 issue of the ABA’s Section of Family Law Enewsletter. Copyright 2014. Reprinted with permission.

 

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