The Need For Mental Health Professionals in Divorce

Divorce CounselingEarly on in my relationship with new clients who are starting the divorce process, I often  inquire whether or not they are seeing a therapist.  If the answer is no, I regularly encourage my clients  to consider meeting with a therapist.   Generally speaking, I look at this as something positive  I can do for someone who is just starting out through the often stressful and usually emotional process of divorcing.  While this is sometimes a difficult conversation for a lawyer to have with a new client, many  are very appreciative. Usually sooner than later, they do seek out a therapist, who ends up being someone they can  lean on for emotional support as they wade through this process.  Most important, however, is that the clients know that they have someone that they can feel absolutely safe telling anything and everything to, as the therapist/patient relationship is entirely confidential.

It is a very different situation, however, when the issue of seeing a therapist comes up during the process of a divorce, usually during a custody dispute. In those cases, a therapeutic professional is appointed by the court to evaluate a family and make recommendations concerning their future custodial arrangements.  This therapist,  who is usually selected by the children’s lawyer, is viewed as the court’s witness and is someone very different from a personal therapist.

When I have clients who are ordered to see a court appointed therapist, I explain before the meeting with this professional that nothing they say is “confidential”.  I tell them that although this person will likely have a tremendous impact on their future custodial arrangements, they must carefully think about their conversations with this therapist, as anything they say will likely be disclosed to everyone involved in the case, including the court.


I was surprised, therefore, when in a hotly litigated child custody situation, a mother recently brought a lawsuit claiming that her confidentiality was violated when she and her parents participated in a court-ordered custody evaluation about a child from her prior marriage. The appellate court agreed with my reaction when,  in the case of Johnston v. Weil, No. 1-08-2361 (1st dist. Dec.2, 2009), the first district  held that because the evaluation was conducted for the purpose of making information available to assist the trial court in deciding custody, it was not privileged or confidential, especially since there was no therapeutic relationship between the mother and the therapist; the therapist was doing this examination at the court’s request, and the mother’s relationship with the therapist was not based on her own volition nor was it for treatment purposes.  The case is currently on appeal to the Illinois Supreme Court.

So, if you are newly embarking on a divorce,  or you are already in the midst of one and find it stressful, consider engaging in personal therapy.  Not only will it help you survive the process, but it will allow for a complete safe haven for your confidential thoughts.  Moreover, in many cases, it will help save you some money on legal fees.  Your lawyer will have more time to focus on the legal work involved.

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