Therapists help people deal with difficult emotional situations. Perhaps no emotional situation is more difficult (or prevalent) than divorce. A therapist’s communications with their divorced or divorcing client are private unless those communications could shed light on some child custody determination. Child custody in Illinois is divided into parenting time and parental decisions. These are both determined by what is in the best interests of the child. “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 602.7(a) AND “The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a) “[T]he best interests of the child is the ‘guiding star’ by which all matters affecting children must be decided.” In re Parentage of J.W., 2013 IL 114817, ¶ 41 A parent or a child’s most personal confessions to a therapist are perhaps the best indicator of the child’s best interests. A therapist’s observations and notes can be a big part of what determines which parent gets what kind of custody. Therapists are called a collateral witness in custody dispute. A collateral witness verifies other things that the primary witnesses, the parties, have alleged. Despite being a “witness,” the therapist is never actually called to testify. A therapist’s observations and opinions are communicated to an Illinois divorce court indirectly through Guardian Ad Litems. Divorce judges in Illinois can have upwards of a thousand family law cases on their docket. Judges cannot know every detail about a family’s dynamic. So, judges appoint an attorney called a “Guardian Ad Litem” to represent the children’s best interests. The Guardian Ad Litem interviews, mom, dad, the kids and the collateral witnesses. A therapist might be a collateral witness in an Illinois custody dispute. A “guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(b) Does the mandate to interview “others possessing special knowledge of the child’s circumstances” include asking therapists about confidential information discussed in therapy? Typically, all communication in therapy cannot be disclosed to third parties per Illinois’ Mental Health and Developmental Disabilities Confidentiality Act. “All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created […]
