This article will briefly outline the traditional role of the mental health provider prior to the client’s involvement in legal proceedings, and will then address the provider’s varying roles in the mediation, collaboration, negotiation and litigation processes. The reader will see that adversarial negotiations will be either cooperative or aggressive, and that the mental health provider’s involvement in the litigation arena make take different forms.
When the mental health provider is involved in divorce litigation, the provider may be called upon by his or her client to voluntarily testify in court as an expert or lay witness, may be appointed by the court or jointly by the parties to provide neutral information to the Court, or may be involuntarily involved in the legal proceedings by his or her client’s spouse. That involuntary involvement may range from informal or formal requests by the client’s spouse’s attorney to provide information, to being subpoenaed for court testimony.
Before lawyers become a part of the life of the mental health professional’s client, whether pre or post-separation, traditional services would be provided to individuals, couples, families and children, such as marriage and/or couples’ counseling, family therapy, the treatment of children, and individual therapy. For clients facing divorce, issues involving topics such as co-dependency, empowerment and bereavement may typically be addressed. At some point, however, before life-changing decisions are made, the client should be encouraged to see an attorney specializing in family law matters, as a mental health professional could face criminal liability for the unauthorized practice of law if the mental health professional gives legal advice. As a separation becomes even more imminent, anger issues and how they should be dealt with on either end, and how to tell children of the impending separation, will need to be addressed. The client may then need encouragement to make a plan. That plan, which the client will make in conjunction with his or her attorney, will involve either Mediation, Collaboration, Negotiation or Litigation.
When the therapist’s client is involved in mediation, the attorney will typically have a genuine desire to help the family, the parties will share common goals, and will be seeking services at the direction of their attorneys such as family therapy, couples communication, co-parenting issues, therapy for their children, and perhaps individual therapy. Family therapy may include issues such as assistance to the client’s children and to the “innocent spouse” in dealing with and relating to the paramour of the “offending spouse.”
If the therapist’s client is involved in collaboration, again, there is a genuine desire on the part of the legal professionals to help the family. The collaborative process will essentially entail an attorney for each party sitting down with the couple to address their concerns, and to resolve them, without going to court. The attorneys may frequently recommend to their clients that they seek the same services as would be recommended for clients in mediation. In addition, however, licensed therapists may obtain training in collaborative divorce, and may actually participate in the process as a collaboratively trained mental health professional. Sitting “at the table” with the parties and their respective attorneys, the collaboratively trained therapist may work either as a “neutral mental health professional,” to help facilitate the negotiations; may function as a “coach,” offering insight and encouragement to one or both parties in helping to evaluate options and needs; or may be a voice for the child or children of the parties.
Clients unable to mediate or collaborate, who may feel the need to have an attorney “on his or her side” advocating for him or her, will become involved in either cooperative adversarial negotiation, or aggressive adversarial negotiation. Cooperative adversarial negotiation may proceed much the same as proceedings involving mediation and collaboration, and again the attorneys may encourage the parties to seek the same mental health services as in non-adversarial cases. However, if the adversarial negotiation is aggressive, therapists may find that they are being sought after to either act as a “hired gun” advancing an individual party’s agenda, or to be used by an attorney to evaluate his or her prelitigation positions.
An attorney seeking to involve his or her client’s mental health professional prior to court proceedings may be looking to develop evidence for posturing in the negotiations to strengthen his or her position, or may be seeking to groom the therapist for court testimony. Here the therapist is being asked to actively help the client’s cause within professional bounds, and to not necessarily act in a “neutral” manner. The therapist will be called upon to willing cooperate with the client’s attorney, and may be subject to pressure by that attorney to tell the other spouse’s attorney or a Judge what the attorney wants the therapist to say. Particular attention must be paid to protection of the client’s confidentiality.
Occasionally attorneys involved in aggressive adversarial negotiation may jointly seek mental health information such as a psychological evaluation, a substance abuse evaluation, or a custody evaluation, outside of court. It may be in the attorney’s client’s best interests to discover negative information before it is presented in court, to more accurately evaluate a case and to keep the information out of public records. The mental health provider must of course be qualified to engage in any specialized services which may be requested.
Clients unable to mediate, collaborate, or negotiate either cooperatively or aggressively, may find themselves involved in litigation. Clients may then seek to enlist the aid of his or her therapist to testify on his or her behalf at trial. The client’s therapist may also find that he or she becomes involved involuntarily in the legal proceedings by the client’s X2B (soon-to-be-ex-spouse). The client may wish to involve the therapist in the proceedings because the therapist may be able to render an “opinion” if “qualified” by the client’s attorney (verb – not adjective) as an “expert.” Judges often give greater weight to the testimony of experts, which may then result in each party hiring his or her own expert so the experts may duel it out in court. An expert, unlike a nonexpert lay witness, is entitled to render an opinion in the matter for which he or she has been qualified. The sought-after opinion may relate to who should have custody of a child, and whether visitation terms should perhaps limit contact or set conditions as a prerequisite.
Significantly, the opinion can be based upon hearsay. Hearsay is a statement by someone not present in court, which statement is offered for its truth, such as the statements of a child who is too young to testify in court. For example, a father may wish his child’s therapist to testify that the child told the therapist “mom’s boyfriend touched me” (fact offered for its truth), and to render the opinion that therefore it is in the child’s best interests that father (not mother) be awarded custody. Similarly, the mother may wish to call the child’s therapist to testify that the child told the therapist that during visitation dad yells, drinks, swears, watches pornography, has his paramour over past the child’s bedtime, or any of the foregoing, and that therefore it is in the child’s best interest that mom’s request for supervised visitation, or request for terms of visitation (no cohabitation, no inappropriate computer viewing, attendance at AA) be granted.
A client may also wish to have his or her therapist give lay (nonexpert) testimony as to facts (not opinion), such as the therapist’s observation that after learning of his or her clients X2B’s adultery and betrayal, the client is in therapy is on medication, gained or lost weight, and is deeply upset. These facts may support a claim that the client’s X2B’s behavior has had a negative impact on the client’s well-being, and that therefore, the attorney will argue, the client should get a greater share of the marital assets.
The therapist should be aware that his or her testimony, same as the testimony of any party, is subject to impeachment. If testimony is “impeached,” that means the testimony is shown to not be trustworthy, and therefore should not be given much weight. A showing of bias is one way in which attorneys will try to impeach testimony. Bias can be shown by having the professional disclose how much he or she is being paid to testify in court, or to render professional services, in an effort to show that the professional has a financial stake in saying what the client wants him or her to say. Testimony may also be impeached by a showing that the professional did not meet with the other party client’s (X2B) but rendered an opinion relating to that party or comparing the two parties.
If not hired directly by the client to act on the client’s behalf, a second way in which a mental health professional may become involved in litigation is if appointed by the court or selected by the parties to neutrally obtain information for the Judge prior to the hearing. There may be a request for a psychological evaluation, for a substance abuse evaluation, for a custody evaluation or for a home study. If ordered to provide these services through the court, there may be a discount in price offered to the parties. In many cases some of these services will be provided by county employees through family services or even through child protective services. If there is a substance abuse or psychological evaluation, the person evaluated may be required to sign a Release so the other attorney may see the results and recommendations, so as to follow up as to whether the party is abiding by those reasonable recommendations.
The therapist may find him or herself involuntarily involved in litigation proceedings by his or her client’s X2B. The attorney for the client’s X2B may telephone the therapist in an effort to influence or enlighten the therapist as to the client’s bad behavior, in the possibly misguided belief that the therapist will somehow get his or client to see the light, to admit to wrongdoing, and to address the problem. The attorney may think the therapist is unaware his or her client has a sexual addiction, has undiagnosed bi-polar disorder, has borderline personality disorder, or is narcissistic. In this instance the duty of the therapist is to protect his or her client, and to not breach confidentiality. If the attorney for the client’s X2B is unable to co-opt the therapist to his or her cause, such as perhaps being unable to get the therapist to pressure the client to agree to supervised visitation, the attorney may feel compelled to take action to get the therapist to “cooperate” or to “see the truth.” The attorney may then serve the therapist with a subpoena.
The attorney may serve the therapist with a subpoena compelling the therapist to be deposed in the lawyer’s office so that the attorney may obtain information. This is called a “discovery” deposition. Or the attorney may subpoena the therapist for what is called a de bene esse deposition, which is a deposition for the purpose of preparing and using transcript of the deposition in court as testimony. Or the attorney may subpoena the therapist to testify at trial.
If the therapist is subpoenaed for a discovery deposition, the attorney may be looking for evidence of a psychological disorder, of a sexual disorder, or evidence that as a mandated reporter the therapist reported physical or sexual abuse by his or her client to the appropriate authorities. The therapist may “move” to “quash” or eliminate the subpoena if the therapist fears the therapeutic relationship would be compromised by disclosure of information. This may be appropriate in cases such as when the client’s X2B subpoenas the therapist for a child, which child is processing verbal, emotional, or physical abuse, and the abuser may punish the child for “telling on” the abuser. If the child will suffer consequences for telling, the child may not be as forthcoming in the future if the child fears the therapist will blab what he or she tells the therapist to the other party or to the Court.
If the therapist does not make a motion to quash the subpoena, the therapist will have to appear for the deposition or risk being held in contempt of a subpoena. At the deposition in the lawyer’s office, the therapist will have to answer questions under oath. The therapist may feel he or she wants an attorney to protect his or her interests, if the therapist is concerned he or she did not act properly, such as by not reporting abuse which he or she may have been mandated to report. The subpoena to attend the deposition may include a mandate that the therapist bring his or her notes regarding the client. A professional who feels that he or she may be subpoenaed as part of discovery efforts may keep his or her notes to a minimum, or may not even be willing to take on clients involved in litigation. Even if a client signs a waiver of the right to call a therapist to testify as a witness, or to produce notes, that waiver does not apply to the client’s spouse.
If the therapist would not be available to testify on the date of trial, an attorney may issue a subpoena to attend a de bene esse deposition. At the de bene esse deposition the professional will be placed under oath, will be questioned, and the testimony will be transcribed. That transcript will be read by the Judge at the hearing, and will be used in the same manner as live court testimony. Due to the informality of the surroundings, the therapist may have a false sense of security.
Thirdly, a therapist may be subpoenaed by the client’s X2B to testify at trial. The therapist will have to appear unless he or she files a Motion with the court to quash the subpoena. The therapist will have to answer any questions of his client’s spouse’s attorney, unless the client’s attorney objects to a question and the Judge sustains that objection. The therapist will then be cross-examined by his or her client’s attorney. Although called to testify by the client’s X2B, the client or the client’s attorney may help the therapist with the logistics of testifying – when, where, navigating courthouse security, what to wear, and how to answer questions. The attorney may even help the therapist “prepare” his or her testimony.
There may be a question of who is paying for the therapist’s time. If the two attorneys do not clarify this matter, either one or the other party will initially pay and then make a motion in court for the Judge to reimburse some or all of the costs, or the therapist may move to quash the subpoena subject to a ruling on a motion of either party to determine who will pay for the therapist’s time. If a guardian for the child has been appointed in a case involving children, that guardian may also ask questions of the therapist on the witness stand, as may the Judge. The therapist may also be asked to identify and to explain various documents which the therapist may have produced in discovery.
Lastly, a mental health professional may be appointed by a court at the conclusion of a final or other hearing as a “parenting coordinator.” There the role of the therapist is to help the parties work out communication and visitation issues if one party has an impairment or if communication is poor. The therapist may have to come to court to testify in the future if a party is uncooperative or problematic.
Aside from involvement in divorce proceedings through mediation, collaboration, negotiation, or litigation, a mental health provider may operate as a “visitation supervisor” if he or she voluntarily holds him or herself out as providing that much-needed service. The therapist could be called upon to testify in court as to what happens during visitations. It is essential that appropriate contracts be prepared detailing exactly who the client is in these cases, and whether the supervisor is neutral or represents an individual client’s interests. There is a real lack of trained professionals who can fill this very real need.
This article discussed ways in which a mental health professional may be involved in the resolution of divorce – whether through mediation, collaboration, negotiation or litigation. To best serve the needs of the client, and to protect his or her interests, it is essential for the mental health provider to understand the context in which the conflict is being addressed.
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