Can a marriage counselor testify in a custody hearing?

I live in NY. When my husband and I saw a therapist together, the therapist told us in our first session that he would not testify in court. We cannot use him to assault the character/mental health of the other party. Period. It is written in our contract with him and summarized in his first progress note.

If a marriage counselor has been employed to help assist a couple find their best future, I don’t see why they would testify for/against either party.

How would they be able to make recommendations without divulging confidential details?

The court should appoint a law guardian to see to the best interests of the child(ren). That is not the job of the marriage counselor.

I’m interested to see what others have to say.

I don’t know for sure,. but I would suspect there is something similar to client / attorney privilege in place.

No marriage counselor worth the cost of his time would want to be involved in a child custody case, unless he or she were forced into that position as a witness to a harmful event involving a child. Even then, I doubt if he would choose to be a witness for one or the other party in the marital dispute, but would testify “this is what I observed” if he were honest and unbiased.

Marriage counselors can only work effectively if they establish – with both parties having issues to resolve – that they are impartial and unbiased. If a marriage counselor started advocating for one side or the other in divorce / custody hearings, then he’d pretty quickly see his business dry up, I think.

I say this not from any knowledge of the profession or the laws or regulations that govern, but simply as one who knows how counseling has to work, if it has any chance at success.

@Cupcake: thank you for your perspective from experience.
I am curious about that contract, as I am aware that in some family court cases the judge can override contractual obligations if s/he does not consider them in the best interests of the children. In many jurisdictions, in custody cases, the consideration of the welfare of minor children supersedes contracts made in the interests of the adults.

No. It’s a violation of their ethical standard. To issue an opinion would be to weigh the factors of each person in a relationship, where a couple’s counselor is obliged to be neutral.

And courts won’t take a counselors opinion as unbiased; they will only do so with a professional who is to be neutral and only in the child’s interest. In my custody battle, we had an evaluation by a court appointed evaluator, a Dr of Psychology who interviewed us, the kids, did home inspections, spoke to teachers, and the kids’ therapists. It took a year and $9,000.

Thank you, @zenvelo , exactly what kind of answer I was seeking.

When I worked in Child Prot Services in NY (for over 8 years), we would submit letters from the children’s therapist to court, and we would sometimes have court ordered evaluations on the parent(s), but never from a marriage counselor.

You might ask if the counselor would write a letter on the behalf of the parent, if the letter would be favorable.

No, similar to doctors-patients and attorneys with their clients, those seeing a therapist enjoy the privilege of confidentiality. Breaking this confidentiality would be a violation of the ethical standards of the counselor’s profession (the only exception being if a client of their directly threatened bodily harm to someone else, then the counselor could inform the person threatened).

The counselor would not be giving away minute details, and of course would have a release signed by the client that specifies the therapist can communicate with the Court, @Darth_Algar.

Well yes, I’d imagine any client can wave their right to confidentiality, much as anyone can wave any legal right they choose to. The question, as posed, however, does not seem to involve the deliberate waving of rights.

@Darth_Algar: The question as posed, however, does say ”Is a marriage counselor legally allowed, without divulging the details of confidential discussions, to make recommendations about custody of the child/ren?” which is potentially a matter for a judge to decide as it relates to the interests of the child/ren, as I stated in a later post.
In that case, it is not about waiving (please note the spelling) confidentiality rights.

If you are a Marriage or Family Counselor, @Darth_Algar, then please address this more specifically as @zenvelo and @jca have done.

Thank you, @jca, for your voice of experience.

@Darth_Algar: If the client wants the letter from the therapist, she would have to sign a release for the therapist to communicate with the Court, otherwise, the therapist would be open to a lawsuit. If she wants the letter, she signs the release. If she doesn’t want the letter, no release. The question as I read it was that one of the parents wants some kind of communication between the therapist and the court. In that case, the therapist has to cover his butt.

Yes, one of the parents (clients), not both however. The question, as asked, would effectively have the counselor testifying in favor or one client at the expense of another, and would have him potentially divulge information relating to that client without the client’s consent.

@Darth_Algar :Are you speaking from any sort of specific experience or professional training or just “general knowledge”? If the latter, this Q is in General, and not really suited for the type of philosophical/ethical discussion you seem to want to have.
Perhaps you could ask a Q in Social if you want to debate this?

@Darth_Algar is correct. A couples counselor has two clients, both have rights. The counselor can get a release to testify, but both clients have to consent to the release.

A counselor is obligated to advise both counselors of those conditions at the first meeting. That first session is also where the clients are advised that any information regarding violence or danger either to themselves or another person obligates the counselor/therapist to report to either Child Protective Services, Adult Protective Services, or the police, depending on the nature of the information.

As I said, I never saw a couples’ therapist reporting to the court.

@canidmajor

This isn’t a philosophical/ethical discussion for the sake of it, it’s directly related to the question. In a nutshell the answer is “no”, for ethical reasons. Sorry if this answer is not to your liking.

It doesn’t actually affect me, @Darth_Algar, and I am frankly more likely to heed the posts of someone involved in the system, like @jca.
And as it turns out, having done more research today, the answer isn’t a bald “no”, if the court has reason to believe that, in the opinion of the trained family therapist, the child/ren could be significantly negatively impacted by living with one or the other parent. A meeting with the judge can be held in chambers, and the therapist can discuss impressions without discussing confidential details.
It’s a “discretion of the judge” kind of thing.

Thanks for your input, @all.

Yeah, sorry, but no judge worth their salt would ask any professional to possibly betray the ethical standards of his/her profession. And frankly I do not see how a counselor could make any kind of meaningful recommendation about child custody without discussing details.

For some clarification: Yesterday afternoon I got a call from my friend’s dad who is a recently retired family court judge, who explained to me the basics of this issue. He said that if one party felt that it might be pertinent to the custody issue, he would meet with the counselor, privately in chambers and ask if s/he felt that there was any reason to fear for the child’s well-being if primary custody was granted to one or the other parent. The judge would not ask for details, just impressions. Based on that, the court might then require a more extensive and intense review of one or both parents. So no, @Darth_Algar , because you seem to be absolutely wedded to the wording of the original OP, the counselor can’t be required to testify in open court, but as I said in my previous post, it’s not a bald no, the judge has discretion about who s/he interviews relative to the best interests of the child/ren, which supersedes other considerations.

@canidmajor Any therapist who offered such an opinion without a signed release of both clients would be at risk of a lawsuit and loss of license.

The judge can’t trump ethical requirements of the law; in chambers or open court has nothing to do with it. And if the therapist suspected a child was ever in danger, the therapist is obligated to report that to Child Protective Services.

@zenvelo

Exactly. In public or in private it’s still a breach of confidentiality. This would be like the judge pulling a defense attorney into his chambers and asking the attorney without details if they think their client is guilty.

@canidmajor

Out of curiosity, if your friend’s father is a family court judge then why the need to ask a bunch of strangers and laypersons on the internet on your friend’s behalf? Could your friend not have simply asked their father this?

I was curious about this, and quite frankly surprised when he called me. I had asked my friend if she knew anything, casually, I didn’t know she’d call her dad and ask him to call me. It was very sweet of him, I thought. I got the impression he’s sorry he retired. :-)

@Darth_Algar : It’s not quite the same thing. It has to be brought to the judge’s attention and basically is just asking if there might be a reason to to delve more deeply.

The therapist can always refuse to talk to the judge. The clients can sign a contract like @Cupcake said. There are a boatload of variables at work here.
Are you part of the system @Darth_Algar ? You keep making absolute statements, I am curious about your expertise.

As I said in my last post, I’m a layperson. And I don’t know if you’ve ever noticed this, but ethical standards of professions like therapy, the law and medicine tend to be rather “absolute”.

We’ll just have to agree to disagree about that, @Darth_Algar , they are not absolute. That’s why medical professionals are required to report public health threats, therapists have to report dangers to children, etc.
The sanctity of the confession made to a Catholic priest is absolute, no matter the subject. The rest? Not when there’s a credible threat.

Yes, there are certain extreme exceptions to confidentiality. We’ve discussed that in this thread. That’s not what you’re talking about however. What you’re talking about would be a violation of the therapist’s professional ethics, could result in the therapist facing a lawsuit and/or revocation of license, and no judge worth his/her gavel would ask such out of them. You asked the question. Not sure why you’re being argumentative about the answers that aren’t to your liking.

It wouldn’t be a violation if the client signed a release, @Darth_Algar.

@jca But both clients have to sign a release.

@jca‘s posts were valuable to me, @Darth_Algar, yours, as someone who just wants to argue absolutes, are not. The discussion is fluid, information has been added by participants and outside sources. I get that you are absolutely wedded to the original Q, I have learned a few things since, it’s too bad that you haven’t.

Yes, @zenvelo.

@canidmajor

I am not “absolutely welded to the original Q”, but nothing that has been added to the discussion changes the fact that the therapist would be violating the standards of his profession by doing what you suggest in the original Q. It’s too bad that you don’t get that. ( Even the user who’s post were valuable to you, are, to go by their posts, in agreement here.)

@Darth_Algar: I can tell you what is always bandied about by not only caseworkers, but Family Court lawyers, too. Much of what occurs in Family Court is a big gray area. Maybe it’s because it’s because of the health and safety of children, I don’t know. If something is necessary or might be helpful, there are ways to make it work. If something will be helpful in a case, they’d get a release and make it happen. I’ve had kids talk to the judge in his chambers, we’ve seen judges order things that were mind boggling, and when it comes to a case, you never know which way the the judge will decide. We’ve had judges put kids back with parents who were not compliant, we’ve had judges take kids away from parents who were compliant, I’ve testified and been cross examined by lawyers who went easy on me because they knew that we were doing the right thing and the kids should not have been with the parent. We’ve had babies born to mothers who had all the other kids removed, and this baby gets to stay. One supervisor would say “why wasn’t that baby removed” and the other supervisor would say “well we have to give the mom a chance with this baby.” We’ve had therapists do evaluations that say “this mother should never have custody of any child” and then a few years later, the mom gets the kids back. So to clarify there are a lot of variables in place when it comes to FC.

@jca

None of those apply to this situation however, which is a counselor/therapist who is bound by certain rigid ethical standards.

@Darth_Algar: You seem invested in having the last word although you admit to having no professional knowledge about the situation.

Congratulations. You have the last word.

I’m sorry. Please forgive me for presuming to discuss a topic posted on a discussion board. I should have known better.

@Darth_Algar: The OP requested specifically answers based on personal knowledge and/or professional experience, and that the case is in NY. I am coming from a professional area of knowledge and also a NYS area of knowledge. You have admitted to none of the above.

@jca

You’re coming from a background in child protective services, not professional therapy. You’re just as much of a layman as I am in this.

@Darth_Algar: Suit yourself. Think what you want. I’m not arguing with you. Good night.

Good lord, why are people so stand-offish these days? It has become impossible to have a calm, civil discussion without it being an “argument”.

@Darth_Algar It’s cuz you argue.