Should Child's Therapist Testify in Divorce Hearing? Ask Dr. Mike

by Dr. Michael Oberschneider

Dr. Mike,

My husband and I are going through a nasty divorce, and my son’s therapist is refusing to appear in court to help us. His position is that he’s a therapist and not an expert and that he isn’t comfortable coming to court. This is baffling to me since he has seen my son in weekly counseling for over a year now, knows a lot about my son’s condition and has always had a strong opinion of what our son needs. Our son has serious developmental delays, and I’m just trying to make sure my ex-husband covers mental health treatment and educational costs after our divorce. Thanks to Google, I now know the difference between “a fact witness” and an “expert witness” but still don’t get why he is making such a big deal about coming to court to speak his mind on what he knows as a therapist. He also told my attorney that he would file something with the court to get out of coming when he learned that we would be subpoenaing him, which I am pretty certain he cannot do. Frankly, I don’t care how uncomfortable or upset he is because I need the judge to hear about my son’s problems from his therapist. This has been a very stressful and expensive process for us as a family, and I just want it to end in the best possible way for our son. Thoughts?

A Concerned Parent

Concerned Parent,

Your situation is actually quite common inasmuch as therapists typically do not like to appear in court. The main reason being that therapists do not feel comfortable revealing privileged patient information, especially during a high conflict divorce or custody battle.

As you likely know from your own research, your son’s therapist could serve as a fact witness in court to discuss his observations and experiences in treatment with your son, but he cannot offer his opinions beyond that. An expert witness is a different sort of professional; the expert witness is credentialed in his area of specialty (in this case forensic psychiatry or forensic psychology) and appears in court to provide opinions in order to assist and inform the court in its final ruling.

You should also know that most therapists are not trained to appear in court to be forensic experts. And even if your son’s therapist were credentialed to serve as an expert witness, he would not be able to serve in that role for your son in your current court case for a few reasons – as therapist, he would lack the needed objectivity required to offer expert opinions, and he would be assuming a dual or multiple relationship as both therapist and expert. In most instances, taking on the dual role of therapist and mental health expert for a divorce or custody matter is not advised and could even constitute an ethical and/or professional licensure violation.

So, what should you do? I recommend that you work closely with your attorney and follow his or her direction on the matter. The decision to invite or compel your son’s therapist to court should be thought through carefully as there are both potential positives and negatives to having him there. The main positive, of course, would be for the court to learn about your son’s treatment and current functioning and needs; the more information the court has in that regard the better. There are, however, some negatives to consider. The most important being that your son’s therapist does not wish to appear in court. In my experience, therapy relationships often deteriorate or even end abruptly after the therapist provides testimony. This is because your son, your husband or you may not be entirely pleased with what the therapist says on the stand. In my opinion, the fact that your son’s therapist has asserted strongly that he does not wish to come to court and will do whatever is in his power to not attend, should be taken seriously.

Also, therapists are generally advocates for their clients, and your son’s therapist is likely biased when it comes to your son and your son’s functioning and needs. Thus, depending on what the therapist would say in the courtroom and how convincing he would be, his subjectivity as treater could end up helping or hurting your case.

As far as the subpoena issue goes, your son’s therapist could file a motion to quash or a motion for a protective order with the court, which are means by which he is permitted to argue his position for why his testimony should not occur. The court would consider the arguments put forth by the therapist and offer a final ruling. If the court does not vacate or declare the subpoena invalid, the therapist must honor the subpoena and attend court. Typically, attorneys file the motion to quash, but therapists can as well.

Again, you and your attorney should weigh out all of the positives and negatives of compelling your son’s therapist to appear in court. In the end, what is more important to you (and your son), the therapist’s testimony or a continued positive therapy relationship with the therapist for your son? Yes, high conflict court disputes can be emotionally (and financially) exhausting as you have pointed out, and I hope that your outcome is a very positive one for all involved, most importantly, your son.

Dr. Michael Oberschneider is the founder and director of Ashburn Psychological and Psychiatric Services. Send questions to moberschneider@hotmail.com.