Licensed professional counselors are increasingly becoming involved in court proceedings relative to their work with families involved in high-conflict divorce, separation and custody litigation. Counseling professionals can serve in a variety of roles when working with families embroiled in divorce litigation. For example, a counselor might develop a therapeutic relationship with an individual family member, a couple or the entire family unit. These roles are typically kept distinctly separate. However, when working with high-conflict families, such roles can become easily blurred. Thus, counselors can be unexpectedly swept into litigation because of misinformation, hidden agendas, the expansion of what started as a fairly simple role or even a lack of knowledge about court terminology and procedures (such as not recognizing when counselors are required to release information to the court and when they are not).
Counselors must be proactive and engage in cautious practice when interacting with high-conflict families and with court professionals. We offer counselors 10 simple guidelines to follow.
1) Be aware of ulterior motives. There is no question that individuals going through separation or divorce appropriately turn to counselors for support and guidance to get through one of life’s most challenging psychosocial events. But the possibility also exists that attorneys will refer clients to counseling for other reasons. For example, if a couple is involved in custody litigation, an attorney might refer a client to a counselor to document the client’s version of events or to set the stage for later seeking an opinion from the counselor about the client’s mental health status or ability to function as a parent. There may also be times when attorneys direct clients to bring their children to counseling in hopes of later soliciting a supporting opinion from the counselor regarding the individual’s abilities as a parent.
A counselor needs to be clear at the onset of the therapeutic relationship about why the client is there, what the client expects, what the counselor can and cannot do and whether the referral is from the client’s attorney for a specific reason. It is critical for the counselor to also know who the identified client is.
Counselors can certainly work with clients to enhance their coping skills and to effect change. If a client has a history of substance abuse, for example, proactive and voluntary involvement in counseling can demonstrate that client’s interest in and willingness to tackle a problem before being ordered to do so by a judge. Participation in counseling can also indicate effort and bolster a court’s impression that the client’s problem is under control.
However, it is important that counselors not be used to perpetuate a false impression for court purposes. Counselors cannot control the sincerity of a client’s motive, but we do not want to be complacent in a ruse to gain an advantage in court.
2) Know your role and avoid dual relationships/multiple roles. A counselor in a therapeutic role provides support for clients and empowers them to build on their existing strengths and make positive changes. In contrast, an evaluator gathers information from multiple angles and sources for the express purpose of rendering a report and recommendations to the court.
Counselors can certainly opine about the condition and progress of the client. However, counselors should not opine about the condition, progress or functionality of individuals they have not met or for whom they have limited information.
Sometimes the client, or an attorney, will ask the treating counselor to offer an opinion about specific issues such as parental fitness, abuse or domestic violence. The counselor must offer recommendations and opinions that are consistent with the counselor’s role and competency. For example, it might be fine to say that the client presents with symptoms consistent with someone who has been a victim of domestic violence. But if the counselor’s information is limited only to what the client has told the counselor, it would not be prudent to comment on the propensity of the client’s partner toward violence. Similarly, it would not be prudent to repeat the client’s statements as fact if the counselor was not present for the described events.
3) Be familiar with ethical codes, legal statutes and best practices. The 2014 ACA Code of Ethics specifically addresses issues such as informed consent and confidentiality, dual relationships, multiple roles and identifying the client. When in doubt about a situation, counselors need to always consult the ACA Code of Ethics and avail themselves of the ethical consultations made available through the American Counseling Association (call 800.347.6647 ext. 314 or email firstname.lastname@example.org).
It is also in the best interest of counselors to be familiar with their state laws and regulations. Some state laws include nuances that more clearly define when confidentiality must be broken, such as in cases of child abuse and neglect.
Counselors must also refrain from offering legal advice to clients, while at the same time remaining aware of laws in their jurisdictions so they can avoid guiding clients down the wrong path. Counselors should refer clients to attorneys when legal advice is needed and in the client’s best interest. One counselor encountered serious legal problems and a licensing board complaint when she suggested that a client, whom the counselor believed to be a victim of domestic violence, take the children and relocate to another country where the client’s family lived. States have specific laws regarding the removal of children from the jurisdiction. Removal of children without the permission of the court or consent from the other parent can result in criminal charges against the removing parent and a loss of custody.
4) Obtain consent and document all contact. Counselors should obtain copies of any documentation regarding custody and visitation when a separation or divorce is involved. Counselors need to ask for the most current copy of the court order and document that the copy is represented to be the most current copy. A counselor’s informed consent document should outline the expectation that all modified and updated court orders will be provided as they occur.
When there is no official documentation, counselors must keep detailed records about what they were told and by whom. Counselors working with children in divorce situations should seek consent and input from both parents whenever possible. When this is not possible, the reasons should be documented. Sometimes a court order will grant one parent sole custody of the children or sole decision-making authority. Other times one parent may state that the other parent isn’t involved because of estrangement or death. Client records need to reflect what the presenting parent has told the counselor so that the counselor will have a reasonable basis for proceeding if another parent surfaces and objects.
5) Offer support, not re-entrenchment. From a humanistic perspective, the therapeutic alliance is built upon support and unconditional positive regard for the client. However, in cases of high-conflict separation or divorce, there can be a fine line between the position that the client is 100 percent right and the estranged spouse is 100 percent wrong.
It can be difficult for two people to settle the economic and custody-based differences in their legal case when one person is cemented into a faulty belief system of entitlement or stuck in a position rooted in principle. Settlements result from the art of compromise, and positions based on principles can be expensive. In other words, clients are sometimes so concerned with winning a point that they lose sight of the big picture and end up jeopardizing more important elements of the case. Counselors sometimes do their clients a disservice by being so supportive of the client’s position that the client cannot move forward realistically through a legal system that is often more concrete in the application of the law.
6) Maintain neutrality where appropriate. This guideline pertains mostly to counselors working with children. It is easy to become invested in the parent whom the counselor sees or talks to most frequently. Hearing only one side of the story can absolutely affect the counselor’s view of the child’s experience, especially when the child has limited verbal or cognitive abilities, is not emotionally insightful or is not detail oriented.
Counselors should start with the understanding that children generally fare much better in divorce situations when they are not caught in the middle. Counselors serve the child well by supporting his or her relationship with both parents, unless there is a clear risk of harm to the child. Counselors can refer family members in need of support to other professionals to avoid conflicts of interest.
7) Do not offer an opinion of someone you have never met. It isn’t uncommon for a lawyer to ask a child’s counselor to render an opinion and recommendations regarding custody of the child or for a client’s counselor to opine regarding parental fitness and ability. However, the counselor should stick exclusively to what the counselor knows.
It is OK to speak about the counselor’s own client — with the client’s permission — to include what that client has reported, the consistency of words and affect, and impressions regarding that client. It is not wise, however, to offer comment on a parent whom the counselor has never met. Such comments would be based exclusively on what the parent who is a client has reported to the counselor. It is acceptable to state, “The client reported that her husband hit her,” but it is not advisable for the counselor to state, “Mr. Jones is an abusive man who is violent in his relationships. He should not be trusted to have custody of his son.”
8) Do not assume you can avoid court involvement. Some counselors think they can avoid court involvement by adding one or two phrases to their informed consent documents stating that they refuse to participate in court proceedings. Although there might be an argument that the client agreed to waive any right to call the counselor as a witness, a subpoena can trump that agreement. In other words, if an attorney subpoenas a counselor, the counselor will likely have to appear for a deposition or for a hearing.
The counselor can seek to have the subpoena quashed and should not release any clinical information until it is determined that the subpoena is valid and will be upheld. Best practices suggest that the counselor obtain consent from the counselor’s own client or an authorization to release information. However, even without that consent or waiver, the counselor may have to provide records or even testify.
Avoiding court begins the moment the client walks in the door. Informed consent and documentation are essential. Counselors should be trained in courtroom dynamics, testimony and legal and ethical issues even when it is the counselor’s preference to not go to court. Such measures, including ongoing communication with the client, can decrease the likelihood of having to participate in court proceedings.
9) Consult with your state licensing board, malpractice insurance carrier or attorney when necessary. If subpoenaed, consulting with an attorney before releasing records or providing testimony is wise. It is helpful for any counselor whose practice involves working with high-conflict families to have an attorney available for prompt consultation if necessary.
An attorney can review documents and guide the counselor regarding the process for balancing ethical responsibility and court involvement. Sometimes subpoenas can be quashed or suppressed. Some counselors make the mistake of responding to a threatening letter from legal counsel suggesting that the counselor must immediately make all records available. An attorney will know if the request or demand is valid in the counselor’s jurisdiction and can guide the counselor away from any ethical pitfalls associated with an incorrect response or the premature release of confidential records. Under no circumstance, however, should a subpoena simply be ignored.
10) Choose your words carefully. Wording can be everything. When asked for a report or an opinion, the counselor should confine his or her response to that which the counselor knows. Counselors should avoid supposition and assumption. It is acceptable to say, “My client stated …,” but it is not acceptable to respond as if the counselor was present or witnessed the event unless that is the case.
Simple wording can make a difference in how the counselor’s opinions or recommendations are received. When asked a question by an attorney, the counselor should listen to the question, think about it and then offer an answer that is responsive without providing more information than was requested.
Credibility is critical, and it is the counselor’s reputation (as well as the best interests of the client) on the line when the counselor renders an opinion or makes recommendations. The counselor must be able to support recommendations and opinions with facts, best practices and empirical evidence.
Counseling high-conflict families going through separation or divorce can present a slippery slope. The work is extremely important for the family unit and its individual members because they are dealing with an extremely challenging life event. However, cases involving the courts are stressful in even the simplest of cases. Many counselors prefer to maintain a supportive role and do not wish to do forensic (court-related) work. However, they can easily be maneuvered into the role of witness regardless of their efforts to avoid that position.
The guidelines provided in this article do not represent an exhaustive list of the professional and ethical responsibilities of counselors involved with high-conflict divorce cases. However, following these guidelines can help counselors maintain credibility, be more mindful of potential legal and ethical obligations and provide the client or family with needed emotional support. The guidelines should also remind counselors of the importance of receiving training for work with this population.
Knowledge Share articles are developed from sessions presented at American Counseling Association conferences.
Ann M. Ordway has been an attorney for 25 years and practiced in family court for many years before entering the counseling profession. She is completing her doctorate in counselor education and supervision through Walden University. She is a distance clinical professor in the Department of Counseling and Special Populations at Lamar University in Beaumont, Texas. Contact her at email@example.com.
Ruth O. Moore is a licensed professional counselor and national certified counselor who is a distance clinical professor at Lamar University. She has extensive experience in expert witness testimony and has published and presented widely on court process in child abuse and child custody cases. Contact her at firstname.lastname@example.org.
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