Therapist Ethics in the Minefield of Court Referrals
Ann Hines, LMFT, speaks with Dr. Melissa Berrenge, the director of Family
Court Services for Santa Cruz County.
Ann Hines: When I decided to make a shift in my practice into a specialty in
work with children, teens their families; divorce became a primary issue. I went to
conferences on working with children of high conflict divorce, and eventually
taught a course of my own on the topic at JFK University. You were kind enough
to give me so many tips on the delicate balancing act of working with children,
parents, attorneys and the court. I’d like therapists in this community to have the
opportunity to benefit from those pointers as I did. So let’s share your wisdom
and experience in the field with everyone!
What are some of the reasons the court may refer a parent for therapy?
Dr. Berrenge: Firstly, here is a continuum of the concept of “referral”. The Court
has statutory authority (Family Code 3190) to order a parent or minor child for up
to one year of counseling by a mental health professional. The Court has to find
that the dispute between the parents poses a substantial danger to the best
interest of the child and the counseling is in the best interest of the child.
Ultimately, the purpose is to stabilize that parent so that the children benefit.
After the initial separation, parents are understandably very upset and may suffer
from depression, fear, panic and outrage. Their children are often drawn in as
confidants or placed in the middle of the conflict. Having a professional support
system assists them in their ability to adequately parent during this difficult time.
A parent may be ordered for therapy if they appear to be stuck in anger or
depression and continuously blame or disparage the other parent. Counseling
usually is ordered when a child appears to be aligned with or alienated from a
parent to a point where their reality testing is impaired.
Suggestions or recommendations from the mediator or Judge can also be made
without a Court order. For example, with victims of domestic violence, it is often
explained how a group or individual counseling can help, but the mediator usually
refrains from recommending that the Court order it because we want to respect
that individual’s choice. Victims will often agree to counseling because they
want to explore their options, develop new tools and be better role models for
their children.
A.H: What are some reasons a child may be referred?
M.B: Children are referred for therapy for several reasons. Very often the
parents agree that their child has become symptomatic and will stipulate that the
child goes to counseling. Along with the referral for the child is the addition that
“both parents shall participate at the therapist’s request”. In instances of
domestic violence or restraining orders, we will specify that they participate
separately. One caveat about the parent’s participation it that the therapist must
be very careful not to get drawn into the conflict and lose focus on the client, the
child. If the parents need co-parent counseling, refer them out to another
therapist. The intent of the parents’ participation is to give them feedback on how
they can be better parents with suggestions on changing behaviors to assist the
child. Education on how their behavior affects the child is very appropriate and
beneficial.
During the initial phase of the separation, and if the conflict is continuing, it is
imperative that the child have a safe place to express feelings without the worry
that they will be angering or upsetting each parent. This is especially helpful
when the child understands that the therapist is not an agent of either Mother or
Father. Along with this type of referral goes a lecture to the parents of how sad
it is that their children must have therapy to learn to cope with their conflict and a
summary of the research on the expectations of children’s problems when
exposed to prolonged conflict.
Another use of children’s counseling is to monitor how the child is doing when the
parents refuse to communicate. Parents understand that the therapist is a
mandated CPS reporter and may be reassured that the child’s complaints will be
attended to without policing the situation themselves or repeated Court visits.
A.H: What are some common pitfalls in doing therapy with court referrals?
M.B: Court referred therapy is a minefield. There are ethical mandates and
Rules of Court that a therapist must follow. The Local Rules of Court (Rule
3.3.10)) state “Neither party shall arrange for counseling or therapy for a child
without written permission from the other parent or prior court order. Ethical
guidelines indicate that a therapist must never make recommendations for
custody unless they have evaluated both parents. Yet the Court often
receives letters from therapists with custody or visitation
recommendations when the therapist had never met one of the parents!
The Court generally terminates the child’s therapy with that therapist because the
counselor is seen as an advocate for one parent, and has lost their neutrality. I
have seen this happen too often. It is so unfortunate that the child loses another
significant person in his life. I cannot stress enough how important it is that
therapists refrain from writing these kind of letters to Court.
Another pitfall is being used to contact Child Protective Services. The savvy
parent litigant is aware that CPS may discount allegations by a parent in a
custody suit. Therefore, they prepare and coach their child to disclose something
that the therapist is mandated to report. There have been several cases where a
parent takes the child to multiple therapists (sometimes in multiple states) so that
they can open new CPS cases.
A.H: Please tell us about the complex issue of confidentiality in court
referrals.
M.B: The Court can provide attorneys for children at no cost to the parents, and
Court connected clinicians to speak with the children and report to the Judge.
Therefore, if the Court really wants some direct information, it can be handled
outside of therapy. It should be rarely necessary for the private clinician to report
to Court, and very unusual to discuss the case with attorneys. If you are
contacted by an attorney (usually at a parent’s request) and determine that it
would be beneficial to gather information from the attorney, then make sure you
have signed releases from both parents for each of their attorneys, and insist on
speaking with the attorneys together in a conference call. That way it will
minimize the fabrication or misquoting of what you have to say.
A.H: Yes, I have been surprised, to say the least, to read an attorney’s letter
from one parent to another describing my recommendations. This has happened
even when I have not spoken to that attorney. My recommendations were
interpreted by the parent and reported to their attorney, who then includes them
in a letter to the other parent. I have had to respond by writing a letter to both
parents with my actual recommendations re-stated very clearly.
M.B: Exactly the problem. On the other hand, it is not unusual in the course of a
Full Evaluation, for the investigator to speak with the therapist. It would most
likely fall below the standard of practice not to consult with the therapist when
one is trying to determine what is in the best interest of that child. If you as the
child’s therapist feel that confidentiality is in the best interest of the child (not the
best interest of the counselor) then assert it with the evaluator (with an
explanation of why). I find that the treating therapists often have very valuable
insight that is gathered over time. Sometimes I will summarize my findings and
inquire if that is consistent with their impressions. Never assume that anything is
“off the record”. Evaluators are obliged to disclose any source of information that
led them to their conclusions and recommendations.
There are some referrals, such as therapeutic supervision, where the intent is not
confidential and the expectation is that the therapist will be regularly sharing
reports with the Court. Additionally, the Court may refer a parent to counseling
to work on a specific issue such as violence or substance abuse. The Court may
inquire if the parent is regularly attending counseling and addressing these
issues, but I do not recall any instances where the Court was interested in the
specific content.
As a final comment, therapy with a child or parent that is going through divorce or
a custody dispute may be intensely complicated and stressful. Many excellent
therapists have opted out of dealing with these angry and negative families. If
you are considering entering the “minefield” be sure and get some consultation
about setting boundaries with parents, attorneys and yes, the Court. Always be
aware of becoming an agent for one parent’s perspective. I have been doing this
type of work for seventeen years. What I have found to be most helpful when I
get pulled in several directions is to focus on what is really in the best interest of
the child. That focus helps put all the diverse information, allegations, threats,
demands, and fears secondary to why we are doing our work, which is to assist
the child navigate the conflict.
A.H: Thank you so much, Dr. Berrenge. I really appreciate you sharing your
time and expertise with the Santa Cruz community of clinicians!
Melissa Berrengé, PhD can be reached at (831) 454-3310 and
berrenge@mac.com
This article first appeared in May, 2004 Volume 23, Issue 3 of the MBPA
newsletter.