Asking your therapist to testify in court on your behalf, or to speak to a court-appointed evaluator, can greatly assist you in your case. Your therapist knows you well, and will be able to comment on your concerns about your children’s well-being, your efforts as a parent, and your problem-solving abilities. Judges typically find that therapists who testify on their own client’s behalf, and who do not testify about the other spouse if they have not interviewed him or her first hand, are helpful to the court. Click here for more information.

There are limitations and drawbacks to using a therapist to testify, however: your therapist probably has not met your spouse, and may not have met your children. He or she therefore can only comment on you, and not on someone that he or she has not met. 

By calling your therapist to testify, you are waiving your therapist-patient privilege, i.e., the confidentiality of your discussions with your therapist.  Prior to calling your therapist to testify on your behalf, everything that you and your therapist discussed was covered by a special doctor-patient privilege, and was confidential.  Your therapist cannot be called to testify without your permission, except in a few very limited circumstances.

By calling your therapist to testify for you, you are giving your permission for your spouse or his or her attorney to question your therapist about your diagnosis, relationship, and treatment.  Before you ask your therapist to testify for you, decide whether or not you feel comfortable giving up your confidentiality. Sometimes people are surprised by what they learn when their therapist testifies. If your therapist is not experienced in giving testimony, it is easy for him or her to be caught off guard by the opposing lawyer, and to have difficulty explaining to your advantage. Also, many very competent therapists will strongly encourage you to leave them out of the dispute, so that they can be most helpful to you in the ways for which they are best trained, and which is most respectful of the confidentiality of your relationship.

If the court-appointed evaluator wishes to speak to your therapist, you will also lose your confidentiality privilege. Under these circumstances, however, it is usually best to permit your therapist to speak to the evaluator unless there is a compelling reason to preserve the confidentiality of your relationship.

Unless and until you put your own mental health into question, your relationship with your therapist is strictly confidential.

For example, if you are claiming that you need alimony because you are unable to work because of a psychiatric disability, you have put your own mental health into question as part of your divorce case.  In addition, most courts have determined that by pursuing a custody matter you have also voluntarily put your mental health into question, and therefore your prior therapeutic records may lose their protected status with respect to confidentiality. This is because your mental health is generally perceived to affect your parenting. Therefore when you make a custody claim, assume your mental health is necessarily involved. Click here for another terrific article.  

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

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