Therapists help people deal with difficult emotional situations. Perhaps no emotional situation is more difficult (or prevalent) than divorce. A therapist’s communications with their divorced or divorcing client are private unless those communications could shed light on some child custody determination.
Child custody in Illinois is divided into parenting time and parental decisions. These are both determined by what is in the best interests of the child.
“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a)
AND
“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)
“[T]he best interests of the child is the ‘guiding star’ by which all matters affecting children must be decided.” In re Parentage of J.W., 2013 IL 114817, ¶ 41
A parent or a child’s most personal confessions to a therapist are perhaps the best indicator of the child’s best interests. A therapist’s observations and notes can be a big part of what determines which parent gets what kind of custody.
Therapists are called a collateral witness in custody dispute. A collateral witness verifies other things that the primary witnesses, the parties, have alleged. Despite being a “witness,” the therapist is never actually called to testify. A therapist’s observations and opinions are communicated to an Illinois divorce court indirectly through Guardian Ad Litems.
Divorce judges in Illinois can have upwards of a thousand family law cases on their docket. Judges cannot know every detail about a family’s dynamic. So, judges appoint an attorney called a “Guardian Ad Litem” to represent the children’s best interests. The Guardian Ad Litem interviews, mom, dad, the kids and the collateral witnesses. A therapist might be a collateral witness in an Illinois custody dispute.
A “guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(b)
Does the mandate to interview “others possessing special knowledge of the child’s circumstances” include asking therapists about confidential information discussed in therapy?
Typically, all communication in therapy cannot be disclosed to third parties per Illinois’ Mental Health and Developmental Disabilities Confidentiality Act.
“All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.” 740 ILCS 110/3 (emphasis mine)
Communication with a therapist is ALL communication. Normally, nothing someone says in therapy can be shared by the therapist with a third party.
“”[C]ommunication” means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.” 740 ILCS 110/2
Guardian Ad Litems have a quick work-around for therapist-patient privilege, Guardian Ad Litems demand the parties sign a release that allows the GAL to talk to the therapist.
“[R]ecords and communications may be disclosed to someone other than those persons listed in Section 4 of this Act only with the written consent of those persons” 740 ILCS 110/5(a)
Any written release of therapy communications to a GAL must include the following seven (7) items.
“Every consent form shall be in writing and shall specify the following:
(1) the person or agency to whom disclosure is to be made;
(2) the purpose for which disclosure is to be made;
(3) the nature of the information to be disclosed;
(4) the right to inspect and copy the information to be disclosed;
(5) the consequences of a refusal to consent, if any; and
(6) the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and
(7) the right to revoke the consent at any time.” 740 ILCS 110/5(b)
If the parent refuses to sign the consent to therapist communication disclosure, the Guardian Ad Litem and the court can give an adverse inference to that refusal to disclose therapy communication.
Children’s therapists do not need a waiver to disclose therapy communications to a Guardian Ad Litem…even if the child is over 12 years old (when they typically have a degree of autonomy under Illinois law). Children’s therapists do, however, need a court order authorizing the disclosure of a child’s therapy communications.
“The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof:
…an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right” 740 ILCS 110/4(a)(5)
A guardian ad litem may be able to use your observations in court but if a parent is not happy with those observations, they cannot drag you into court to “clarify” those observations in front of a judge.
“In most cases, the best interests of the child is not served by having the child’s treating mental health counselor testify. The trial court did not appoint a mental health counselor so that the parties would have a witness the next time they returned to court. The court appointed the counselor to help the child, to provide the child with someone to confide in, someone with whom she could freely discuss her feelings and concerns.” Steward ex rel. Schluter v. Schluter, 819 NE 2d 1 – Ill: Appellate Court, 4th Dist. 2004
If a Guardian Ad Litem somehow hears of your therapy communications without consent or a court order…they can probably still use that information in their report to the court.
Even if a Guardian Ad Litem (GAL) hears privileged therapy communication which is inadmissible at trial, they can still communicate that information to the court. “We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 693 NE 2d 1282 – Ill: Appellate Court, 2nd Dist. 1998
Whether you are seeing a therapist, your child is seeing a therapist, or you are a therapist, yourself, you need to understand how those therapy sessions can be exposed to an Illinois court during a custody dispute. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
Russell Knight is a divorce attorney practicing family law since 2006. He has forced and prevented disclosure of communications with therapists multiple times.
