When should a therapist testify in child custody or divorce cases?

If your child custody or divorce case goes to trial, you and your spouse will likely call numerous witnesses to testify in court. Many couples wonder whether their therapist or child’s therapist should testify in child custody or divorce cases. The court will generally not require therapists to testify, but there are some cases when you may want to have a therapist testify. 

Why is therapist testimony beneficial?

Most courts consider therapists to be experts in their given field. In some child custody or divorce cases, a therapist’s opinion may be relevant to the issues in the case.

For example, if a child has psychological issues and requires treatment, the child’s therapist’s opinion may be necessary to determine which parent will be able to better provide for the child. The therapist may also provide opinions as to who should have custody and whether the courts should limit visitation.

Will the therapist give an opinion on custody or divorce decisions?

Either side may call therapists to testify as a fact witness or expert witness depending on the circumstances.

If called upon as a fact witness, the therapist must stick to the facts. He or she will only discuss his or her medical findings, patient’s condition and course of treatment. He or she will not express views on any issues regarding the case.

However, therapists can also be expert witnesses. This means that you may call your therapist or your child’s therapist to give his or her opinion on custody or visitation.

For example, if you want to petition for sole custody or limit visitation because you believe the other parent is harming your child emotionally, you may want a therapist to express his or her opinion on how the other parent treats your child.

Some therapists may find that they are testifying as both a fact and expert witness. Preparation before the trial can help clarify what you expect the therapist to discuss.

Should I have the therapist testify live or just use records?

In most cases, attorneys can subpoena the therapist’s files and records. This is often easier than getting a therapist to take the stand. After getting an affidavit from the custodian of the records, you can submit the records as evidence.

While therapists are not required to take the stand, it may be in your best interest to have your therapist testify in person.

Therapists can offer input in cases where there is concern for the child’s mental well-being.

If the other party claims that you may pose a threat to your child’s psychological well-being, you may bring in your own therapist to establish your stability and ability to parent effectively.

Note: Expert witnesses may require compensation to appear in court.

Will I have issues obtaining records?

The Health Insurance Portability and Accountability Act (HIPAA) protects people’s privacy with regards to their medical records. Releasing your own records is fine, but subpoenaing your ex’s records could violate HIPAA. A therapist can also release your child’s records without issue, unless the opposing party has sole legal custody of the child at the time.

So, should I have a therapist testify in my divorce or child custody case?

The reality is that no divorce or child custody case is the same. Each case will require a careful examination of the facts before determining whether a therapist should be questioned under oath in court. Getting what you want in a family law case oftentimes rests on expert testimony and other evidence you present in court.

A Gwinnett County child custody lawyer can help make sure that you give yourself the best chance at success by presenting your strongest evidence. Attorney David Ward has spent years fighting for his clients in complex divorce and child custody cases. His experience and dedication can give you a leg up in the courtroom. To schedule your REAL Case Analysis today, call 770-383-1973.