My child’s therapist wrote a letter for court. Can we show it to the judge?

Many times, parents in custody disputes have asked me if we can bring letters from a therapist to court. Some therapists feel comfortable putting their concerns or opinions in writing and these letters can seem to support a particular outcome. However, the medical and therapy records of children are privileged and not admissible in court without following certain procedures.

Children’s communications with therapists are confidential, and the courts will endeavor to protect them from disclosure. Confidentiality is critical for the child to feel safe and secure in the relationship so that he or she can be honest and get the most out of therapy. When a parent wants to introduce a child’s therapy records or information that would pierce the therapist’s duty of confidentiality to her patient (the child) the court may appoint a special guardian to waive privilege. The role of the guardian is to investigate whether the therapist/patient privilege should be waived. The GAL has to decide whether the records are so important to the court’s determination that the value of revealing them outweighs the patient’s interest in confidentiality.

Letters from a Therapist to Court

Where a therapist has written a letter specifically for litigation, the parent who has the letter should be extremely cautious. Many judges will view such a letter as unethical and form a quick negative impression of the particular therapist.

If a therapist has an opinion and feels that the court should consider it, the court can appoint a guardian to waive the privilege or an ARC (attorneys representing children) attorney to amplify the children’s voices. In rare instances, a judge will hear directly from a child about their preferences. This is uncommon, and a last resort, as the courts prefer to keep children out of the courthouse for their protection.

Medical Records

Medical records, while also confidential, can be admitted to the court as long as a custodial parent has given consent. However, if these records are going to be introduced at trial, the person seeking to use them must first give notice to the opposing party in accordance with Massachusetts law, G.L. c. 233 sec. 79G.