Therapist-Privilege in Family Law
What is the therapist-privilege? Much like the attorney-client privilege provides the basis for confidentiality in what you tell your attorney, there is also a privilege of confidentiality between therapists and their clients. This privilege is often raised in family law cases because therapists have insight into the emotional well-being of a minor child, leading a parent to want to use a therapist to testify at a hearing relating to the best interests of a minor child. It is also raised because therapists may have insight into his or her patient that is a parent subject to litigation.
The therapist-patient privilege is created by law in Colorado. Section 13-90-107(1)(g), C.R.S. states that a licensed or registered therapist shall not be examined without the consent of the therapist’s client about any communication made by the client to the therapist or the therapist’s advice given in the course of professional employment.
The purpose of providing this confidentiality is to ensure that a patient feels comfortable being open and honest about his or her emotional well-being, without fear that this information will later be used against him or her. “The privilege is designed to enhance the effective diagnosis and treatment of mental illness by preserving the ‘atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears’ necessary for effective psychotherapy.’ People v. Kailey, 333 P.3d 89 (Colo. 2014).
This privilege, however, can be waived. For example, the therapist privilege for a parent is waived when a parental responsibilities evaluation is conducted under section 14-10-127, C.R.S. because one of the purposes of the evaluation is to make mental health information available to assist the court in determining what is in the children’s best interests. The privilege can also be “waived” if one places his or her mental health (or defends his or her mental health) at issue in a case.
The waiver of the privilege for children is a more complex issue for the courts. The court generally places a high value on the therapeutic relationship a child has with his or her therapist, and wants to protect this relationship. In L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013), the Colorado Supreme Court found that when the patient is a child, he or she is incompetent to hold the privilege. A child’s parent generally holds the privilege (or a GAL in a dependency and neglect case). However, in this same case, the court found that a parent does not have the right to waive or withhold the child’s privilege where the need for the waiver is self-serving.
If your child is seeing a therapist and you believe that person may have information that, if revealed, will help the best interests of your child in a custody case, it may be important to speak with an attorney, as this issue can be complex.
