Family law practitioners face a myriad of strategic decisions when preparing for a custody trial. To promote a client's interest, the attorney must ensure that every step in crafting the case, as well as the ultimate trial itself, is designed to prove to the trial court that the client/parent can best promote the child's interests, which is the court's paramount concern. Eschbach v. Eschbach, 436 N.E.2d 1260 (1982); See also Johnell E.K. v. Fatima T., 123 N.Y.S.3d 485 (1st Dept. 2020). To that end, the attorney must carefully consider whether the substantive testimony offered by a witness furthers these goals, whether the witness is a willing participant in the litigation, and whether the testimony offered will be viewed favorably by the court. These questions take on a particular significance when deciding whether to call a child's therapist as a witness in a custody dispute.

In conflicted divorces, the child's therapist plays a unique role. While the therapist likely offers an invaluable perspective regarding the needs and interests of his or her patient (the child), such a relationship must not be damaged by involving the therapist in litigation. Moreover, the child has a right to a confidential relationship with her therapist, and in divorce litigation, that therapist may be the child's only buffer against inflammatory litigation and undue parental influence. It may be the child's only safe space. The court takes this therapeutic relationship so seriously that a parent may not merely obtain the child therapist's records by executing a HIPAA release.

In Liberatore v. Liberatore, 37 Misc. 3d 1034 (Sup. Ct. Monroe County 2012), where one party was provided the notes from the child's treating therapists after signing a release, the court held that such ex parte, self-help measure eviscerated "the existence and purpose of the statutory privilege" and such party was required to "utilize a judicial process sufficient to give notice to the court and the treatment provider via motion or an application for a judicial subpoena duces tecum on notice to the parties and treatment provider."

Further, whether a party may call a child's therapist in a custody case may sometimes be conditioned upon the attorney for the child consenting to the disclosure of confidential communications between the child and his or her mental healthcare provider, or a judicial determination that the testimony is in the child's best interests. See  Forrestel v. Forrestel, 125 A.D.3d 1299 (4th Dept. 2015).

The perspective of a child's therapist may conflict with the desired outcome of a party. The therapist may be a relevant witness who can testify to the child's issues regarding physical and legal custody, including but not limited to the child's preferences for access and which parent the child trusts to make major decisions. Calling the therapist, however, while at first glance may be helpful to a client's case, may in fact be the most detrimental move. The matrimonial practitioner must be careful not to weaponize the child's therapist to achieve the client's goals inside the courtroom, since the trier of fact may conclude the litigant is placing his own interests before the child.

Reluctant Participant?

In this author's experience, many therapists are reluctant participants. In addition to dreading litigation itself, they realize they will have to deal with mom and dad in the future as they treat their child-patient. Even if the matrimonial practitioner believes the child's therapist will offer testimony favorable to his or her client's position, the impact of such testimony will undoubtedly lose luster if spoken by an unenthusiastic and sometimes angry participant. After all, how could the therapist passionately convey the desires of the patient when they have no interest in being present in a courtroom setting?

Or worse yet, the therapist's desire to be kept out of the litigation, may cause them (either consciously or subconsciously), to convey their feelings in an even stronger manner against the party calling them. Some therapists go so far as to maintain a strict "no court" policy, and while such a policy will unlikely serve as a legitimate basis to ignore a duly served subpoena, one has to weigh the value of calling a witness who is compelled to provide testimony against his or her will.

Even if counsel and the child's therapist both wish to ensure the child's best interests, the means of achieving this amorphous concept might drastically differ. While the litigator is laser focused on obtaining a favorable result in court, the therapist has to consider whether relaying confidential information in court might breach the child patient's trust, whether offering testimony in court is essential for their patient's welfare, and whether espousing a position in favor of one parent might alienate the other parent and affect the child's continued treatment.

In many custody cases, a forensic psychologist will often speak to the therapist as a collateral source and his or her observations will be contained in a report, which will likely be offered or entered into evidence. However, the practitioner hoping to merely rely on the therapist's opinion contained in the report is advised that such portions of the report may be deemed inadmissible hearsay in the absence of cross examining the declarant. See Straus v. Strauss, 136 A.D.3d 419 (1st Dept. 2016).

Likewise, the client who is on the wrong side of that therapist's information may also want to call the therapist for cross-examination to challenge the observations; or the client simply live with the information reported so that the child's therapist is not placed squarely in the middle of the litigation. Regardless, if the decision is made to call the child's therapist as a witness, the practitioner must then decide whether the child's therapist will act as a fact witness, which requires that the testimony be limited only to his or her findings and observations, or an expert witness, which permits the therapist to offer his or her opinion on topics such as diagnoses and behavioral patterns, provided the therapist is appropriately credentialed.

Court Has Final Say

Nevertheless, since it is the court that ultimately determines the appropriate custody arrangement, it is equally important for the matrimonial practitioner to consider whether the specific trier of fact views the testimony of the child's therapist in a positive light.

On the one hand, the court may think that the child's treating therapist is most attuned to the child's needs and possesses information "material and necessary" to the court's determination of custody. In re Jonathan C., 28 N.Y.S.3d 764, 770 (Fam. Ct. Bronx County, 2015). While it is not for the therapist to opine on who the better parent is or who the child should live with, the therapist can offer important insight into various considerations, such as whether the child fears one parent, whether he or she is more attached to one parent, whether one parent provides the child with more comfort than the other, or whether the child experiences certain stresses when in the care of one parent. Given the gravity of custodial determinations, it only makes sense that such a decision should be based upon as much information as possible.

On the opposite end of the spectrum, the court may view an attorney's decision to call a child's therapist as a witness in a  contested custody matter as placing the child's therapist smack in the middle of the case. Litigation is necessarily adversarial and the optics of calling a therapist, who is primarily tasked with tending to the child's emotional needs, to act as an advocate for one parent may be viewed as that parent placing their own interests above the child's interests.

It was for this exact reason that the Court in Penny B. v. Gary S., 61 A.D.3d 589 (1st Dept. 2009), denied the mother's request to call the child's therapist as a witness "since it was apparent that the mother only sought to call the therapist in order to advance her own interests." Again, those same concerns held by the therapist regarding a potential breach of their client's trust and the feasibility of continuing the therapeutic relationship are considered by the Court as well. During a divorce, which is a time fraught with change and uncertainty, the Court might be reluctant to allow one parent to jeopardize what is potentially the child's greatest source of stability.

Conclusion

In any event, decisions pertaining to custody and access lie within the discretion of the trial court and it is for the court—not the child's therapist—to determine how, when, and under what conditions physical and legal custody should occur. While the court may well be assisted in soliciting input from the child's therapist, it is important for the practitioner to remember that the input from a child's therapist is just one piece in the best interest puzzle.

Lisa Zeiderman is a partner at Miller Zeiderman & Wiederkehr. Matthew Marcus is an assosicate at the firm.