Psychologists: Keep your Custody Opinions to Yourself

Andra J. Hutchins Andra J. Hutchins

Board of Registration of Psychologists rules prohibit giving opinions

Psychologists try to help their clients. Whether a client needs intense psychotherapy, advice, or just family law attorney Massachusettssomeone to talk to, a psychologist’s job is to listen to, and treat their clients. Against that backdrop, a well meaning psychologist can get into trouble when they offer their opinions to third parties – even with the authorization of their client. These opinions may be unwanted, but also in violation of the Massachusetts rules and regulations which govern a psychologist’s behavior.

One particular area which can lead to a complaint against a psychologist to the Board of Registration of Psychologists involves custody battles in divorce/family law cases. A separated or divorced parent may seek out a psychologist for their child – sometimes without the consent of the other (often non-custodial) parent. After spending time with, listening to, and treating a child brought in by one parent, many practitioners are tempted to offer an opinion to that parent or their attorney, or to the court, about who should have custody of the child.

However, the rules prohibit a psychologist giving such an opinion. A 2012 advisory letter by the Board states that a psychologist who is treating a child “should not write evaluative reports to lawyers or to the court.” Practice Advisory, June 15, 2012, Board of Registration of Psychologists. Yet, this is exactly what some therapists do; often at the behest of the parent who sought treatment for the child. Sometimes, the parent’s attorney will even draft an affidavit for the psychologist to sign. Such an opinion provided to either the parent’s attorney or the court can land the psychologist in disciplinary proceedings with the Board.

Privileged information

Any information the psychologist has that relates to the child or treatment of the child is privileged information, protected by the psychotherapist/patient privilege. No matter how badly the psychologist wants to tell the court about the bad behavior of one parent, or why the child would be better off living with one parent over the other, or not even having visitation with the other parent, such information is (1) an opinion and (2) based on privileged information. In all likelihood, the psychologist was not hired to give an opinion; but to provide therapy. As a therapist, a psychologist should steer clear of offering conclusory custody opinions. Further, even a minor child has a legal privilege preventing the release of confidential information to third parties.

Before you write a letter to the court

If a parent in the midst of a divorce case seeks you out to treat their child, and also requests an opinion from you about custody or visitation, it is best to be clear with them upfront that there are limitations to what you can say to a court, or their attorney. Think twice before you tell the parent of the child you are treating that you will gladly write a letter to the court supporting their bid for custody. Your duties are owed to the child, not the parent. If you believe the child has been abused or neglected by a parent, your obligation is to report the matter to the Department of Children and Families. If there is no indication that the child has been abused or neglected by a parent, but you believe that the child will be harmed if the child lives or spends time with the other parent, consult an attorney before you make any decisions about to whether and to whom you provide this information.

About the Author

Andra J. Hutchins has 20 years of experience as an attorney in private practice; many of those years Attorney Andra J. Hutchinsrepresenting health care professionals in professional licensure matters. Her experience includes representing psychologists and other health care professionals before their various boards in a variety of matters, including sexual misconduct, chemical dependency and inadequate record keeping. View Andra’s bio »

Tips for Avoiding or Responding to Licensing Board Investigations – a Blog Series

Tips for Avoiding or Responding to Licensing Board Investigations is a series of blog posts written by attorneys Milton Kerstein and Andra Hutchins with assistance from Amanda Barrera. In this series we provide practical advice for health care professionals including psychiatrists, psychologists, nurses, dentists, and social workers.

Read other posts in this series: