Most Pennsylvania family law practitioners know about the 2003 Commonwealth Court decision in Grossman v. State Board of Psychology, 825 A.2d 748 (Pa. Commonwealth 2003). I am sure all psychologists are familiar with the case. Recently the Pennsylvania State Board of Psychology, the body responsible for licensing psychologists in the commonwealth, modified its rules to essentially abrogate the Grossman decision. While it might not seem so at first blush, these changes are much more evolutionary than revolutionary.

By way of background, the Grossman decision arises out of a custody case and custody evaluation gone wrong. The facts go back to 1996. Mother and father were preparing for a custody trial, and all parties had an assessment by a psychologist. That psychologist did her testing, conducted her interviews, wrote a report and was prepared to testify at trial. The mother and her attorney hired a second psychologist, Dr. Grossman, to critique the first psychologist's report. That, in and of itself, is not usual and not an ethical violation for a psychologist.

The problem is that in the board's view, Dr. Grossman did more than that. He gathered some of his own data and, in the board's view, in so doing, did his own evaluation, and he conducted this evaluation in the face of the father's directive that he not have any contact with the party's child. More specifically, the parties had joint legal custody of their daughter, and Dr. Grossman delegated responsibility for obtaining consent for his evaluation and seeing the daughter to the mother's attorney. In that, the father was in the process of separating from his counsel, the mother's attorney never clearly received consent from the father for Dr. Grossman to see the child. Dr. Grossman met with the mother, step-father and the child without the father's consent and then when the father found out, he telephoned Dr. Grossman and told him he did not consent to Dr. Grossman having any further contact with his daughter.

Despite this, Dr. Grossman met with the child a second time, after the phone call, and at one of the two meetings, in an effort to assess the child's hygiene while with the father, Dr. Grossman held the child's hands, smelled her and touched her hair, all to see if the child was bathing while with the father. Dr. Grossman later testified at the custody trial as an expert witness on the mother's behalf, relaying his "findings."

The board concluded that Dr. Grossman's independent fact gathering constituted an examination of the party's daughter and was done without the father's consent while he had shared legal custody. Under the board's Code of Ethics, which adopted the Pennsylvania Psychological Association's and American Psychological Association's Codes of Ethics, this constituted unprofessional conduct. Furthermore, the board found that Dr. Grossman could not delegate obtaining consent for his evaluation to the mother's attorney. Based on these facts, the board reprimanded Dr. Grossman and fined him $1,000. Dr. Grossman petitioned the Commonwealth Court for review, and the Commonwealth Court ultimately affirmed the board decision.

What has developed over the intervening years is that the Grossman decision has inadvertently created a new collateral avenue for disgruntled parents to challenge decisions in their custody cases, that being filing licensing complaints with the state board against the psychologist who performed any custody evaluation. Ever wonder why it has been increasingly difficult to find a psychologist willing to do a custody evaluation? This is a big reason why.

The Grossman decision, however, is now 17 years old. A lot has happened in those 17 years.

In the context of children's psychological care and examination, the most significant of these changes is the Minors' Mental Health Consent Statute, 35 P.S. 10101.1. This piece of legislation was passed in 2004 and became effective in early 2005. It states in part:

• The following shall apply to consent for outpatient treatment:
• Any minor who is 14 years of age or older may consent on his or her own behalf to outpatient mental health examination and treatment and a minor's parents or legal guardian's consent shall not be necessary.
• A parent or legal guardian of a minor less than 18 years of age may consent to voluntary outpatient mental health examination or treatment on behalf of the minor, and the minor's consent shall not be necessary.
• A minor may not abrogate consent provided by a parent or legal guardian on the minor's behalf, nor may a parent or legal guardian abrogate consent given by the minor on his or her own behalf.

Note that I could not find any decisions interpreting this statute.

Looking particularly at (a)(2), the language refers to "a parent" being necessary to consent to a psychological examination or treatment, not both parents, just a parent. There are no qualifiers for parents sharing legal custody. The only logical conclusion being that from 2005 onward, legally, only one parent's consent is necessary for either a psychological evaluation or treatment of a child.

Recently, the board has rethought its position on Grossman type situations. At its December 2019 meeting, the board discussed how the 2004 Minor's Mental Health Consent Statute relaxed Pennsylvania law on consent to psychological treatment and examination of minor children, effectively undermining the board's position in Grossman. The thought was that while obtaining both parents' consent would be best practice for psychologists working with children, failure to meet that standard should not rise to a licensing issue.

In so doing, the Board has flipped the responsibility to observe both parents' rights to shared legal custody back on the parties and their respective attorneys and provided psychologists with a degree of insulation.

Moving forward, if a psychologist evaluates a child in a custody case with only one parent participating, obviously there will be credibility issues with the court and potential custody contempt issues for the parent obtaining the evaluation, but the psychologist has not committed an ethical issue that would imperil his or her license. The same would be true of a psychologist treating a minor child with only one parent's consent when the parties have shared legal custody.

We, as family law practitioners, now need to be prepared for two potentially significant issues. The first being a one-sided psychological evaluation and second, the child who has been in some form of psychological counseling or treatment without our client's knowledge or consent.

I am comfortable that the psychologists I know and deal with will obtain both parents' agreement and consent to evaluate or treat a child, but that is not to say that standard will apply across the board. For psychologists, it appears that they now have one less worry, that being a licensing challenge from a disgruntled parent in a custody case who thrives on turmoil.

Lawrence J. Persick, a partner at the Norristown office of Weber Gallagher Simpson Stapleton Fires & Newby, concentrates his practice on resolving complex family law issues such as divorce, custody disputes, child support matters and adoptions. Contact him at [email protected]