The Role of a Therapist in a Custody Case

If your child custody or divorce case goes to trial, you and your spouse will likely call numerous witnesses to testify in court. Many couples wonder whether their therapist or child’s therapist should testify in child custody or divorce cases. The court will generally not require therapists to testify, and may even prevent you from calling a therapist in order to protect the privilege between the child and therapist.

Most courts consider therapists to be experts in their given field. In some child custody or divorce cases, a therapist’s opinion may be relevant to the issues in the case. Either side may call therapists to testify as a fact witness or expert witness depending on the circumstances. If called upon as a fact witness, the therapist must stick to the facts. He or she will only discuss his or her medical findings, patient’s condition and course of treatment. He or she will not express views on any issues regarding the case. However, therapists can also be expert witnesses. This means that you may call your therapist or your child’s therapist to give his or her opinion on custody or visitation.

In most cases, attorneys can subpoena the therapist’s files and records. This is often easier than getting a therapist to take the stand. After getting an affidavit from the custodian of the records, you can submit the records as evidence. Therapists can offer input in cases where there is concern for the child’s mental well-being. Using a therapist in a custody case brings a lot of ethical, legal and moral considerations that should be discussed with your attorney.

For more information on complex custody issues contact our custody experts at 505-880-8737 or email us at