Different Hats Worn by Clinical Psychologists:

In Relation to Family Courts

by

Jan D. Hembree Ph.D.

Clinical psychologists differentiate between several practices of clinical psychology which interface with the practice of law.  At the outset of providing services, clinical psychologists have to decide which role is the appropriate one to perform with any given client.  The relevant roles are:  1) therapist, 1a) child or adult therapist, 1b) marital therapist, 1c) family therapist, 2) psychological evaluator, 2a) custody evaluator, 2b) parent evaluator, 3) expert witness, 4) parenting consultant, or 5) parenting coordinator. 

It is important to understand the differences in these roles because the presumption is that a clinical psychologist cannot don more than one hat for any given client.  Thus, once they have selected which role to perform for a given client, they should not act in a second capacity for the same client.  For this reason, it is imperative that the clinical psychologist establish which role he is to play at the beginning of a case and to make sure that his client and the client’s attorney are aware of the chosen professional role and the associated role expectations for each of these roles.

The following is a description of these differing roles and the role expectations.  Note, that once child abuse or neglect is suspected, then the psychologist is duty-bound by law to report his suspicions to the proper authorities regardless of the role descriptions below.  Two, if the psychologist perceives that any of the clients are a danger to themselves or others, then the psychologist has a duty to breach confidentiality for the sake of protecting the threatened person. 

1)                  THERAPIST

For the sake of this article, when the clinical psychologist practices “psychotherapy,” he practices what is typically known about psychotherapy, i.e., the patient sits in the therapist’s office to talk over his problems.  The description of these problems are covered in a diagnostic manual, currently called the DSM IV-R, where there is a description of any and all psychological or psychiatric problems.  The therapist is expected to make a judgment about the diagnosis or psychological (emotional) problem.  Treatment protocols for these diagnostic problems are the substance of training and continuing education and are not necessary for this article.  The patient could be an adult, a child, a couple, a family, or a combination. The therapist is expected to keep a medical record on the patient per HIPPA regulations, and to maintain confidentiality of the patient’s attendance and contents of the discussions per practice guidelines and by law. Only the patient can waive their rights to confidentiality of this information.  The therapist is expected to be a trusted confident whose goal is to put the patient’s best interests in the forefront.

2)                   PSYCHOLOGICAL EVALUATOR

A clinical psychologist is trained in the practice of psychological testing where objective measurements are used to make unbiased judgments about the nature of the patient’s problems and which would include the clinical judgment of the evaluator.  Usually a written report is required and usually the report is sent to another professional wanting the report.  Still, the psychologist must require a waiver of confidentiality to send out this report since the professional relationship is still between the psychologist and the patient, and no one else, unless otherwise specified.  Therefore, the premise of confidentiality still applies.  In this circumstance, there is no treatment offered by the evaluator, only a diagnosis or an opinion that there is no fitting diagnosis.   

            The psychological evaluator has the option, depending on the circumstance, of evaluating one or more parties.  Thus, the evaluator could just test one person and render a diagnostic opinion.  An evaluator could test a child to see if there is a diagnostic or mental health problem.  “Parenting evaluations” are requests for a diagnostic evaluation of each parent, but this is not the same as a custody evaluation. A parenting evaluation seeks to discover a diagnosis or the lack of one.  A “custody evaluation” is an extensive evaluation with specified guidelines for the purpose of aiding the courts in making a determination about a custody dispute. 

Regardless of the reason for the testing, all information gained by the evaluator is still confidential unless the patient waives their right to confidentiality.  Furthermore they have to specify to whom their waiver applies, meaning it would never be a general waiver of confidentiality. 

3)                  EXPERT WITNESS

A psychologist can testify as an expert witness.  In this case, the psychologist does not know the client, has never met the client, and does not have a professional relationship with the client.  Thus, the psychologist cannot render a diagnosis, will not ever treat the client, and is not bound by confidentiality.  The expert witness is hired by the attorney or the courts, is paid by the hiring source, and is expected to render an opinion about a case without ever having seen the client.   The goal is to aide the courts in the understanding of human behavior based on research and clinical expertise.

4)         PARENTING CONSULTANT

A new role beginning to emerge for psychologists is best described as one where the psychologist works with the parents to help them co-parent their children even though they are divorcing.  This particular situation takes specialized skill because if the situation is such that the parents are not able to communicate, then they will have difficulty parenting their children well enough to minimize the detrimental effects of divorce. In addition, the psychologist needs to be knowledgeable in child development in order to effectively advise the parents.

Compared to the roles described above, this role is much less defined to date with regard to the issues of confidentiality and treatment, and the role expectations vary from state to state.  As in other consultative roles, the psychologist is not treating a mental disorder or an emotional problem, but is giving advice on parenting behavior for the sake of the children.  It becomes more than martial therapy or family therapy because of the inherent involvement of the court judicial system.

If one or both parents request the professional help of a psychologist for coparenting on their own, there should be the presumption of confidentiality and this confidentiality should be privileged.  Parents can make this request if they are still married, are considering divorce, are separated, or have divorced and perhaps re-married. In this case, the psychologist offers advice on how to coparent effectively.  This is a consulting service which does not require a diagnosis and none is given.  Since no diagnosis is given, there is no treatment given, just advice.  Since this is a consultative service, the parents are free to take the advice of the psychologist or not.  All information is confidential and privileged, unless the parents waive their rights to confidentiality.  Whether one or both parents could waive the privilege of confidentiality for the parenting sessions in which both parents attended is uncertain, and could become a thorny legal problem.  The wise psychologist should discuss this with the parents and decide about this issue before the consultation begins.  He should inform the parents that while he may try to protect their confidentiality through the privilege statues, there is no guarantee that he would be successful in doing so.  Psychologists are encouraged to keep the records of voluntary parenting sessions privileged.

Court Ordered:  If a judge orders a set of parents to see a psychologist as the parenting consultant for coparenting then it becomes a different role with a different set of expectations and tenets than the one described above.  The issue of confidentiality is changed. If the parents are court ordered to see a parenting consultant, then the court may decide whether or not they want the psychologist to report to the court or not, or to the respective attorneys, or to the guardian ad litem, if there is one.  If the court orders parents into coparenting consultation, then the psychologist would not promise confidentiality to the parents and might report to the courts information such as the dates of attendance, content of sessions, his opinions with regard to each parent’s behavior as a parent and the degree of their cooperation in the process.  If the parenting consultant also meets with the children, he could also discuss the children’s behavior and their needs and could report that to the court as well.  Psychologists may wish to work within the protection of privilege, but it cannot be assumed.  What the parenting consultant cannot do is make a diagnosis about either parent or any child and he cannot render an opinion about custody.  If the court wants either of these two answers, then the parenting consultant must refer the parents to another psychologist who can do an objective unbiased psychological evaluation.  The parenting consultant also cannot render treatment services.  If he thinks treatment is appropriate for any of the family members, then he would make a referral to an appropriate treating mental health care provider.

The court ordered parenting consultant will meet with the parents as frequently as necessary to help the parents with achieving effective parenting skills. He may look and sound like a psychotherapist, but he is not a psychotherapist in this role.  He may look and sound like a family mediator, but he is not that either.  The difference is that the parenting consultant is not an advocate for either of the individual parents plus he is working with the judicial system towards the goal of helping the children.  In order to avoid misperceptions about his role, the wise psychologist will obtain informed consent from the parents to provide this service, and will do so in writing.

5)                  PARENTING COORDINATOR

If a judge orders a set of parents to see a psychologist as the parenting coordinator then it becomes yet another kind of role.  It is just like the court ordered parenting consultant but there is the added role of authority given to the psychologist to arbitrate conflict between the parents regarding parenting issues. 

Title or Label:  The role of parenting coordinator is being used by domestic judicial systems across the nation and different states have used different titles depending on the state legislation that governs the practice, if there is a related statue.  This role has been called coparenting consultant, coparenting therapist, family therapist, Master Specialist (Arizona), coparenting advisor, therapeutic gatekeeper, coparenting mediator, or perhaps other designations as well.  The label seems to vary with the knowledge or understanding of the judge and the attorneys in domestic courts, and vary according to the state in which it is utilized. The term “parenting coordinator” seems to be the best.

Judicial Authority:  Judges appoint parenting coordinators to act as an extension of their judicial authority.  That is, the parenting coordinator is supposed to make decisions as an arbitrator would do when there is a conflict between the parents rather than have the parents go to court to have the judge make a decision.  The decisions are to follow current court orders and are not meant to supersede the court orders already established.  Since not all details can be predetermined in a court order, the arbitrator is required to settle conflict between parents regarding issues related to the health, welfare, and educational needs of the children.  Some judges expect that the coparenting coordinator will follow the court orders just as they are written, and some judges expect the parenting coordinator to make decisions which may or may not be covered in the court orders.  The intent of the judge is to aide the parents in making good decisions about their children and to also keep the parties out of court since using the court system inappropriately is frequently the way high conflict parents manage to settle their disputes.  The intent of the judge and the intent of the parenting coordinator is to educate and advise the parents about good parenting skills, however most of these kinds of families really need someone to settle an immediate dispute. Authority to make decisions regarding the children will be described and proscribed by the judge’s court orders, and the psychologist will take these court orders at face value.  The psychologist needs to decide what steps to take should the parents refuse or obfuscate the direct orders of the parenting coordinator and to have this agreed upon by the respective attorneys before the professional service begins.  Preferably, this would all be in writing and signed off by the parents and the attorneys for the sake of clarification if not authority.

Privilege:  Although the coparenting sessions are held in the privacy of the psychologist’s office, they are not to be considered as privileged information from the courts.    In the role as parenting coordinator, the content of the sessions and the opinion of the psychologist is not withheld from the judicial system.  In fact, the opposite is true, i.e., the psychologist will take an active role in working with the respective attorneys, the guardian ad litem, the judges, and the school systems as well.  The goal of the psychologist as a parenting coordinator is to serve the children’s best interests by assisting the parents in coparenting effectively.

Immunity:  It is important to the psychologist to have the parents court-ordered to attend parenting sessions because then the psychologist is somewhat more immune to civil suits.  In high conflict cases, there is a greater chance of a civil suit or a complaint to the regulatory board by one of the parents.  The immunity given here helps protect the psychologist from claims of breach of confidentiality.  It does not protect the psychologist from claims of incompetence.

Set of Operational Principles

The following is a set of principles for the psychologist which are being proposed when a clinical psychologist is acting in the role of a parenting coordinator:

1.                              Talk with both parents by phone before meeting with them

2.                              Require copy of the court order to see exact language

3.                              Talk with each attorney to gain their perspective of expectations

4.                              Make decision about suitability of case

5.                              Take position of neutrality and make clear to all parties that the psychologist

a.       does not advocate for either parent

b.      does advocate for best interest of child

6.                              Assumption of no confidentiality

7.                              Practice of confidentiality

a.       Try not to tell one parent what the other parent has said to the clinical psychologist

b.      Try not to tell one attorney what the other attorney has said to the clinical psychologist

8.                              Try to meet with both attorneys in the beginning of the case at the same time to discuss history, gain information about legal problems, explain procedures

a.       Explain how confidentiality is used

b.      Clarify court order expectations

c.       Find out about future court hearings

9.                              Try to meet with both parents together as soon as possible

a.       May have to meet with each parent individually if they are not able to meet together yet

10.                          Review with parents procedures regarding

a.       Confidentiality practices

b.      Fees

c.       Meetings

d.      Reports to attorneys or courts

e.       How this will work

f.        What happens if it doesn’t work

g.       Meet with parents and any others to gain information about history of case

h.       Write up contract with these details to have parents to sign at second session which will help clarify purpose and procedures

Research on Parenting Coordinators

According to the Monitor on Psychology,  “There is preliminary evidence that their efforts work:  A 1994 unpublished study by psychologists Terry Johnston, PhD, found that parenting coordinators reduced the average number of annual court visits from six per case to 0.22 in one year.  An APA Practice Organization-backed pilot project that provides free parenting coordination to needy parents in high conflict cases in Washington D.C. opened its first cases in November and will be measuring outcome.  The hope of all is that the role of the parenting coordinator will reduce court room disputes between parents over their children, and will also help these families who remain in crisis mode constantly.  Most parents are thankful that someone is really helping them in their agonizingly contentious situations. 

Jan D. Hembree, Ph.D.

Clinical Psychologist & Family Mediator