When Pat Benatar sang “Hell Is for Children” (1980, Giraldo, Benatar, Capps, BMG Rights Management), she might have been referring to the plight of minors in custody litigation. It only gets worse for children in custody fights who are in psychotherapy and want to keep communications between themselves and their therapists private. This article examines the vexing problem of determining when young or incompetent children in custody cases have the right to waive their therapist-patient privilege of confidentiality.

A person who actively contests custody presumptively places in issue her mental and physical condition and waives privileges that might otherwise prevent the introduction of such evidence. See, e.g., Baecker v. Baecker, 58 A.D.2d 821 (2d Dep't 1977). Thus, otherwise assertable privileges such as those found in CPLR §4507 (psychologist/patient privilege) and CPLR §4508 (social worker/client privilege) do not shield the custody litigant.

A child involved in a custody case, aside from not being a party, has done nothing that might be construed as a waiver of these privileges. If a child is competent and wishes to assert her privilege in a custody case, she may do so through her attorney (AFC). However, where a child is not able to assert her privilege, whether by reason of incompetence or immaturity, New York law is unclear as to who has the authority to assert the privilege on her behalf. This lacuna stems from New York's issuance of §7.2 of the Rules of the Chief Judge in 2007 abrogating the ability of law guardians to substitute their judgment for that of their clients. Rule 7.2(d)(2) states that the attorney for the child must take a position consistent with the child's wishes, even if the attorney for the child disagrees with what the child wants or has a different opinion than the child regarding what would be best for the child, as long as (1) the child must be capable of making a knowing, voluntary and considered judgment and (2) if the child gets his or her wish, the child must be free from substantial risk of imminent, serious harm. The rule does not address whether the AFC may assert evidentiary privileges on behalf of an incompetent or immature child, whereas prior to the rule's adoption, there was no impediment to a law guardian's assertion of the privilege on her client's behalf. See Billings v. Billings, 309 A.D.2d 1194 (4th Dep't 2003), citing Perry v. Fiumano, 61 A.D.2d 512 (4th Dep't 1978). This article will examine how other states have dealt with this issue and will propose a solution that may be applied in New York.

The Waiver

The confidentiality privilege is particularly important to a child, since therapy is often necessary to assist her in coping with the breakup of the family. A child's knowledge that disclosures made in confidence to her therapist may be disclosed against her wishes impedes the therapeutic process. Mental health professionals generally agree that psychotherapist-patient confidentiality is essential to successful treatment. Doyal, Guardian ad Litem as Child's Privilege Holder, 87 Col. L. Rev. 205.

In general, when a person is incompetent, whether because of age, mental disorder, or other reason, her guardian serves as the privilege holder. Conn. Gen. Stat. §52-14c; Md. Code Ann., Cts. & Jud. Proc. §9-109(ccc); Ohio Rev. Code Ann. §2317.02(B)(1); Cal. Evid. Code §1013 (delegating ability to waive privilege to incompetent person's guardian). For a child, the parent normally holds the privilege. However, where, as in custody litigation, a parent's interests may come into conflict with the child's, the parent may not be an appropriate person to hold the privilege. See Berg v. Berg, 886 A.2d at 980, 984-86 (Sup. Ct. N.H. 2005); Bond v. Bond, 887 S.W.2d 558, 560 (Ky. Ct. App. 1994).

The Law in New York

In New York, there is a relative dearth of case law on the child's right to waive the therapist-patient privilege in custody cases and no reported cases have dealt with the issue of an incompetent child's assertion of the psychologist-patient or social worker-patient waiver privilege.

In Ascolillo v. Ascolillo, 43 A.D.3d 1160 (2d Dep't 2007), the Second Department found that the Family Court properly refused to permit the mother to call the child's therapist as a witness since the AFC did not consent. See also Liberatore v. Liberatore, 37 Misc.3d 1034 (Sup. Ct. Monroe Cty. 2012), citing Perry, 61 A.D.2d 512 (4th Dep't 1978) (in the context of a child custody proceeding within a matrimonial action, communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of “judicial process sufficient to afford the court opportunity to exercise its obligation to determine the best interests of the child in its role as parens patriae,” and for the child, through the attorney for the child, to assert her statutory privilege).

Although the Liberatore court stated that “the trial court has the authority and discretion to determine whether assertion or waiver of the privilege is in the child's best interests,” citing In re Berg, 152 N.H. 658, 661 (Sup. Ct. N.H. 2005), it did not address the issue of an incompetent child's waiver. These cases did not address, or clarify, who in New York has the authority to waive the privilege on behalf of an incompetent or immature child.

Waiver Privilege in Other States

Some states vest trial courts with authority to hold the waiver privilege on behalf of an incompetent child. See, e.g., Bond, 887 S.W.2d 558, 560 (Ky. Ct. App. 1994); Berg, 152 N.H. 658 (Sup. Ct. N.H. 2005; In re Marriage of Khan v. Ansar, No. A-09-977, 2009 WL 4040862 at 11 (Minn. Ct. App. Nov 24, 2009). Other states vest this authority in a guardian ad litem (GAL). See, e.g., L.A.N. v. L.M.B., 292 P.3d 950 (Col. Sup. Ct. 2013) (guardian ad litem should hold the child's psychotherapist-patient privilege when the child is too young or incompetent to hold the privilege and the child's interests are adverse to those of her parents.)

In Kansas and Maryland, a special guardian ad litem is appointed to determine whether an incompetent child's psychotherapist-client privilege should be waived. See In re Zappa, 631 P.2d 1245 (Kan. Ct. App. 1981); Md. Code Ann., Cts. & Jud. Proc. §9-109. The task of this “privilege GAL” varies, but generally it is to assess whether the child is mature enough to appreciate the concept of waiver; if so, the preferences of the child; the benefit, if any, of preserving psychotherapeutic confidences; the value of the information held by the psychotherapist to the proceeding; and the balancing of the child's need for privacy with the court's need for information. Boumil, Freitas and Freitas, Legal and Ethical Issues Confronting Guardian Ad Litem Practice, 13 J. Law and Fam. Stud. 43, 58-61 (2011).

Insofar as New York permits the use of guardians ad litem in certain cases, it is conceivable that a New York court would vest such person with the authority to make the waiver privilege decision for an incompetent child, as other states have done. In the author's opinion, this would be unwise, since courts are better equipped to hold this privilege than are guardians ad litem according to the reasoning below.

Guardians Ad Litem in New York

New York law implicitly distinguishes between “jurisdictional” GALs, on the one hand, and “parens patriae” GALs, on the other. The former, to which Surrogate Court Procedure Act (SCPA) §§402 and 403 and CPLR §1201 refer, are statutorily mandated representatives for persons “under disability” over whom jurisdiction must—and could not otherwise—be obtained. In the CPLR context, GALs are most often appointed so that a plaintiff can effectively sue an infant defendant and obtain a binding judgment. The second GAL category “serves at the statutory or common law discretion of the judge to play an intermediate role by ferreting out information, gathering evidence, and making recommendations that are intended to protect and foster the best interest of the children.” There is no statutory authority in New York for the appointment of GALs to protect the interests of non-party infants in a proceeding; rather, as in other jurisdictions, appointing authority for so-called parens patriae GALs derives from the common law and in particular from the parens patriae powers of the court. See Matter of Doe, 17 Misc.3d 1017 (N.Y. Surr. Ct. 2007).

Some foreign state courts have held that the better choice as between a court and a GAL to hold the child's privilege is the GAL, suggesting that a GAL's neutrality, expertise and efficiency mandate this choice. L.A.N. II, 292 P.3d 942, 949 (Col. Sup. Ct. 2013). It has also been argued that the GAL is the better option because, as the advocate of the child's best interests, GALs can best protect this privilege. L.A.N. II, 292 P.3d at 950.

In the author's view, permitting an incompetent child's GAL to be the sole arbiter of waiving her privilege is an improper delegation by the trial court not only of its parens patriae authority but of its role as a tribunal. The waiver decision involves a balancing of interests, i.e., the need for competent evidence on the one hand and the privilege interest of the child on the other.  Unlike GALs, courts are accustomed to making decisions about competence and interest-balancing and can apply that expertise in cases involving an incompetent child's waiver decision. See, e.g., Guardianship of J.G.S., 857 N.W.2d 847, 851 (Sup. Ct. N.D. 2014). As between a guardian ad litem and a court, the court is the more appropriate holder of the privilege.

Empirical Factors

The ability of a minor to comprehend information about rights can be conceptually related to her level of cognitive reasoning. Piaget's theory of cognitive development (1972) suggests a predictable progression from lower to higher levels of reasoning ability regarding a minor's ability to comprehend information about rights. For example, normally a young child at the level of concrete operational thinking (about 7-11 years of age) would have only a limited, concrete understanding of rights based on an orientation of deference to the authority of those who make the rules (i.e., adults). By contrast, an adolescent who has achieved formal operational thinking (over 14 years of age) normally has developed a capacity for understanding of rights equivalent to that of an adult. Belter and Grisso, Children's Recognition of Rights Violations in Counseling, 15 Professional Psychology Research and Practice Vol. 15, No. 6 at 899.

In the area of children giving informed consent to medical treatment, these theories of cognitive development have served as the basis for proposed guidelines. The authors of these guidelines generally agree that children below the level of concrete operational thinking (7-11 years of age) have not achieved the level of cognitive development required for making informed treatment decisions. They also agree that by age 14 or 15, most minors have attained a level of cognitive functioning (formal operational thinking) that is equivalent to cognitive maturity; therefore, minors should be regarded as competent to give informed consent, unless individually they fail to meet the same standards used to determine the incompetency of some adults. Belter and Grisso, id. at 900. This reasoning may also be applied to the issue of determining when children are competent to waive their privilege of therapist-client confidentiality in custody litigation.

There are considerable differences among children in their ability to reason or engage in problem-solving tasks of the type presented by the waiver decision. Grisso, 3 Perspectives in Law & Psychology 131. In general, courts have not offered standards or opinions that may be translated into measurable indices of legally relevant reasoning capacities. Indeed, the psychological questions about children's thought processes are so complex that courts would be hard put to specify the level of cognitive complexity or problem-solving ability they would require of a child in order for a waiver of rights to be seen as competently provided. Id. at 132. While there is no consensus in the scientific community as to when a child is able to grasp the concept of a waiver of rights, the capacity for voluntary consent appears to be questionable through age 14. Messenger and McGuire, The Child's Conception of Confidentiality in the Therapeutic Relationship, 18 Psychotherapy Theory, Research and Practice 1 at 123 (Spring 1981). There is little data suggesting minors of age 15 and above as a group are any less competent to provide consent than are adults. Generally, older children have a significantly better understanding of confidentiality in psychotherapy than do younger children. Id.

Conclusion

According to experts who have studied the issue, the ability of children under the age of 14 to competently waive their privilege of therapist-client confidentiality is generally unreliable. Also, some children, like some adults, have psychological issues that draw into question their ability to knowledgeably waive their privilege of confidentiality. Consequently, the question arises what person or entity is best suited to hold the power to waive a child's therapist-client privilege when that child is incompetent or too immature to do so for herself.

New York should adopt a rule creating a rebuttable presumption that a child under the age of 14 is not competent to waive her privilege of confidentiality under CPLR §§4507 and 4508. In such cases (or where there is evidence of a child's incompetence over the age of 14) the court should hold the waiver privilege for the child pursuant to its parens patriae powers. If necessary, a hearing may be held to determine whether or not the child has sufficient maturity or competence to enable the child to knowingly waive her privilege of confidentiality.

Daniel H. Stock is the head of family law firm Daniel H. Stock, PLLC.