PARTICIPATION IN THE JUDICIAL PROCESS
It is very important that the mental health provider understands the rules of confidentiality and privacy since some health-related information can remain protected and confidential (Sharma & Thomas, 2018
). In such situations, the patient may be willing to grant a release of the
information or the court may order it, but there are some situations, for example, if there are claims of malpractice, when special rules may apply. These issues are especially complex in situations where clinical care is ongoing, for example, when a child is being seen for treatment and parents are divorcing (Sharma & Thomas, 2018
), and when issues of juvenile competence arise (Soulier, 2012
A response to requests for medical records may differ for individuals in private practice and those working for organizations where a central repository of such records exist. In some situations, the patient or parents may be requesting that the child’s therapist be involved although it is important that the professional clearly understands the nature of the request, for example, relative to providing facts or serving as an expert witness.
The mental health or health care professional should have some basic familiarity with the court and court procedures. Unfortunately, what seems exciting and dramatic on television can be vastly different when you spend long periods of time waiting to testify and then do not enjoy the adversarial nature of the process once it starts! Depending on the nature of the proceeding, an appearance in court may be involved and this might be open or closed or the request may involve a deposition (sworn testimony taken in an attorney’s office in advance). Professional dress and demeanor should be appropriate for a court appearance. Even though a specific time may be arranged, it is frequently the case that court proceedings run late or that changes in schedule occur. A court reporter will typically transcribe or audio record testimony that becomes part of the official court record. Often the testimony will begin with a request for the professional to list past training and other qualifications. Where the professional is serving as a fact witness, there is no reimbursement except where permitted for travel costs by local court rules, nor can an insurance company be asked to reimburse. On the other hand, time spent as an expert witness is, however, typically reimbursed.
It is important for the mental health or health professional to realize that both (and sometimes even more) sides will have an opportunity to ask questions. The order of questioning may vary depending on the context. Typically, after the “direct” testimony (questions from the first lawyer), there will be cross-examination by the other attorney (or attorneys) and then a chance for additional (“redirect”) questions from the original attorney followed by another round from the opposing attorney. At the end of the testimony, the judge will indicate that the witness is excused. In some situations, for example, in a family or juvenile court or in probate court, the judge may take a more active role in the questioning process. It is important to remain calm and professional and give responsive answers to questions.
In providing testimony, the mental health professional should think carefully about the question before giving a direct and straightforward response. It is best if this is as straightforward as possible (sadly this is not always possible). It is often the tendency of mental health and other professionals to give overly elaborate answers. Put another way, be short and to the point and speak to the facts/situation as you know it. It is best to firmly give a simple and responsive answer. If something is complex, one can try to explain that this is the case but keep in mind that attorneys (on all sides) will be thinking about potential implications of literally everything that is said. Anything the professional brings with them by way of notes or records or materials may itself be subpoenaed on the spot; so, as a general rule, only bring with you what you are prepared to have entered into evidence. It is important to realize that the attorney usually will be careful to ask questions where they think they already know the answer. If the question is unclear, ask for it to be rephrased so that you are not answering the wrong question. If you cannot answer the question, then say so. If the question is one that can be addressed based on medical records, it is perfectly appropriate to ask to see the record (or other documentation). It is also possible to indicate uncertainty in an answer or to indicate no relevant knowledge of the answer. If called to testify on certain facts, that is, as a fact-based witness, it is important that the psychiatrist NOT stray into becoming an expert witness; this is particularly complex when the patient remains in ongoing treatment.
At times, the various attorneys will raise objections—these are of various types but from the point of view of the witness, it is important to stop speaking and wait for the judge to sort things out and make a decision and give direction to the witness either to answer the question or not. Often, questions will be asked in very specific ways. Again, if the meaning is unclear,
the witness should ask for clarification. The lawyer may ask if a question can be answered within a reasonable degree of “medical certainty:” for example, “Did X cause Y?” Be sure you understand what this means: usually it means more likely than not, but different standards arise in different situations. It can be a source of confusion for those who constantly cope with uncertainty as they revise diagnoses and treatment plans.
By its very nature, the legal system is divisive, and lawyers may employ a number of tactics in questioning in the hope of helping bolster their case. For example, the lawyer may offer up a summary of earlier testimony; often, this will be cast in a certain way and the witness is well advised to carefully listen and correct any errors or misrepresentations. Similarly, witnesses should be careful about rather vague and general questions that may precede a much more specific and loaded one. When being asked about earlier testimony, it is always possible to ask to have a previous answer repeated. Similarly, when asked about medical records, it is also quite reasonable to ask to review the specific material in question. Being thoughtful and deliberate in answering is important and so is not being ruffled when proceedings are prolonged or attorneys poorly prepared.
Depositions are an important aspect or seemingly hostile of the legal system. They are conducted as part of what the attorneys call the discovery
phase and help the attorneys involved plan their strategy for trial. They also provide the attorneys (on all sides) a chance to observe a witness. The deposition is a legal proceeding and the testimony obtained becomes part of the court record and can be reviewed or presented at the time of a trial. Depositions are usually done in a lawyer’s office or even sometimes in the mental health professional’s office. A court reporter is present to make a record and to swear in the witness. Sometimes, depositions are videotaped. During a deposition, a judge is not present. Attorneys make objections but the witness will still be asked to answer the question (the judge can later decide on the objection). The witness will be given a copy of the deposition to review. Sharma & Thomas (2018)
provides a very helpful summary for the mental health professional going to court.
Legal conceptualizations of children and childhood have evolved significantly over time (Mroczkowski, 2018
). This evolution has reflected many factors. Historically, children were viewed within the legal system as “chattels” (property) and, like women, had few specific rights. Fathers typically were assumed to “rule” the family and make major decisions for family members. These notions began to change as women began to demand, and receive, additional rights and as child development research began to emphasize the important role of parent-child (including mother-child) relationships for healthy development. Courts began to recognize the principle of “best interests of the child” (Goldstein, Freud, & Solnit, 1973
) in decision making regarding child custody. Often, particularly for young children, mothers began to be considered the more natural custodial parents, but over time this notion has changed with fathers assuming an increasingly important role in child rearing.
The increasing frequency, and acceptance, of divorce has raised other issues with current trends suggesting that about 50% of marriages will end in divorce. Other issues arise given the frequency of single-parent households, particularly for children growing up in poverty (Herman, 1997
; Mroczkowski, 2018
). Parental separation and divorce increase the risk for children and adolescents to have various mental health problems-probably doubling this risk relative to intact families. Children can be the focus of prolonged, bitter, and protracted fights for custody. These long-term disputes may also have an even more negative impact on the child.
It is important to understand that the issue of child custody (the ability to make a range of decisions for the child) is not the same thing as parental rights, for example, on issues like visitation. Increasingly, there is a focus on joint legal custody, so that both parents participate in major decisions. This situation, although obviously theoretically fair and ideal, may, in reality, have quite a difficult result for the child if it results in continued battles in which the child moves into the role of pawn rather than a central concern. The advent of same-sex
marriage has added a further wrinkle to this complex legal landscape. Yet another set of challenges has arisen with the advent of new technologies from obstetrics with procedures like in vitro fertilization and surrogacy presenting new opportunities for legal contest.
There are many potential areas of mental health impact of separation and divorce for children and youth (Mroczkowski, 2018
). Following the separation, children may exhibit a range of reactions including anxiety and distress, anger, and sorrow. This can happen even when the separation is amicable; it can become much more toxic if the process is less than amicable. Problems vary with age and developmental level. The younger child may experience an upsurge of anxiety, sleeping problems, and so on. For the older children, problems with anxiety, mood, and school-related issues may emerge. These issues may be particularly challenging in adolescence—itself a time when most teens gradually distance and separate from parents.
Increasingly, courts have encouraged continued involvement of both parents viewing this as in the best interest of the child (Goldstein, Freud, & Solnit, 1973
). Depending on the specifics of the situation, the mental health professional may be engaged (ideally by the court) to make recommendations after doing an assessment. Laws vary considerably from state to state and it is always the case that judges have considerable discretion.
Mental health professionals may be engaged either by court or lawyers for the child (children) to make recommendations relative to the best interest of the child (children). Sometimes, parents will seek mental health testimony in their favor (or against their former partner). Issues can be complex, as facts may be unclear when children are very young and thus less able to speak for themselves. The consultant can make any number of potential recommendations to the courts regarding custody and visitation. Special issues arise when there are concerns about the child’s safety, allegations of abuse, serious psychopathology, or other problems relative to one or another parent. To be effective, the clinician will have to be skilled in understanding aspects of child development, family functioning, and mental health issues and problems. The consultant must also be aware of the specific applicable law. In some states, specific additional, or ongoing, training, is required for work in this area.
It is essential that the consultant maintain ethical and professional boundaries and not be drawn into ongoing disputes. This is sometimes easier said than done. In providing an independent opinion for the court, the consultant should carefully explain their role and the special nature of the professional contact; for example, usual confidentiality rules do not apply in the sense that anything that is said may appear in a written report or be noted in testimony to the court. Referrals should usually come from the court with the agreement of the various attorneys involved and a clear description of the nature of the question(s) to be addressed by the consultant. Sometimes, the child is represented by their own attorney (a guardian ad litem) who will be involved in this process as well.
Sometimes, discussion is required to refine the initial question into one that the consultant feels that they may be able to address. Data may be provided, or requested, from various sources and a series of clinical interviews will usually be conducted typically with each of the parents and the child or children. Depending on the situation, interviews might be done in the home. Information collected will usually include a review of the history of the child and family, the factors leading to divorce, the psychosocial history of the parents, vulnerabilities in them and the child, areas of strength, and so forth. In some situations, additional consultations, for example, psychological testing, may be requested.
The interview of the child should be appropriate to the developmental level of the child with careful attention to evidence of attachments and relationships with the parents. Exploration of the parents’ views of the child, of the home environment, and observation of the parent-child interaction are all relevant. Collateral sources of information, for example, from pediatricians, schools, and so forth, may also inform the process. A final written summary typically includes a review of the background of the consultation including the specific questions of interest to the court and a summary of the sources of information used by the evaluator. Usually, the next section of the report provides a narrative description of the process of the assessment and summaries of interviews and observations, and the final section includes recommendations and conclusions. Once the report is submitted, conferences with the various parties or a deposition may be requested.
A host of special issues/situations may arise in custody cases, for example, the rights of grandparents or stepparents to visitation, issues of reunification of children with parents who have been abusive or neglectful, and so forth. Issues increasingly arise from new approaches to reproductive technologies, for example, the woman carrying the child to term may not be the biological mother. Courts frequently turn to mental health consultants in these situations. Often, the preference of courts is to honor biological relationships, but clear evidence of the child’s best interest may outweigh such considerations. Visitation of grandparents has been an area of active legislation, and litigation, in recent years. Most states now give some form of visitation rights to grandparents, but the U.S. Supreme Court has placed some limitations on such rights.
Increasingly, fathers seek custody and the past presumption that mothers should automatically be custodial parents, particularly of younger children, has given way to a more balanced view that seeks to encourage continued relationships among all involved. Usually, sustained contact with frequent visitation and joint custody are preferred, but some situations may make this less than ideal, for example, if a parent has seriously harmed a spouse, the child, or a sibling. When the divorce process has become bitter, the joint custody arrangement may present a culmination and complex continuation of this long struggle. This is not in the best interest of the children involved. For some parents, desperation following adverse legal decisions leads to parental kidnapping. These situations are fraught with risks for the child and consultants should be familiar with relevant state and federal laws in the area.
Sometimes, allegations of parental physical or other abuse occur as part of the custody dispute and must be carefully evaluated even though they can be, at times, very difficult to sort out. For parents who have substance abuse or mental health problems, the existence of a problem is less important than what any impact this might have on caring for a child. These can easily involve health care professionals who are mandated to report suspected or reported abuse.
Given the highly mobile U.S. society, there is potential for multiple jurisdictions to be involved. In most states, there is recognition of the need for stability and coordination of care for the child. Increasingly, divorced parents live at some distance from each other. In most states, there is recognition that parents may need to move although specific issues may arise that lead to a revisitation of custodial or visitation issues. There can be highly specialized and complex issues, for example, when a parent is a member of a recognized Native American tribe where the tribe’s own rules and laws may apply.
Often in an attempt to avoid the time and expense of protracted legal proceedings, there may be attempts at alternative disputes resolutions, for example, through mediation. It is important in such situations to realize that what seems a simple and fair solution to the adults may not be so to the child or children involved. Even in such proceedings, the interests of the child or children should be considered in the process. Mroczkowski (2018)
provides an excellent summary of the role of mental health professionals in custody cases (Box 26.1
Adoption represents a specialized custody issue, albeit one not always involving mental health professionals (Brown, 2018
). Adoption has been practiced since ancient times, often including adults and children if, for example, an heir was needed. In the United States, informal adoption preceded the first laws on the topic, for example, as orphan children were taken care of by family members, friends, or neighbors. Adoption arose in the context of parents taking care of orphaned babies, in apprenticeship of children, and in the practice of sending homeless children from large cities to work on farms. Legal formalization of adoption is a much more recent historic phenomenon in this country with statutes now present both at the state and federal levels. In the past, a major source of adoptees came from unmarried mothers; with birth control, this population has dwindled and foreign adoptions and adoptions of children from foster care has increased, particularly with the emphasis on longer term permanency planning (Brown, 2018
). Over the last two decades, there has been a noteworthy upsurge in adoption of children from other countries.
Around 135,000 children a year are adopted in this country and another 428,000 are in foster care (see adoptionnetwork.com/adoption-statistics
). In some situations, the birth parents, usually mothers, maintain ongoing contact with the child and adoptive family (this is termed open adoption
). There are some special challenges for foreign adoptions depending, particularly, on the age of the child and whether or not the child has been cared for in an institutional setting, the latter significantly increasing the risk for a range of potential problems (Brown, 2018
; Rutter, 1998
). One of other risks for adoption relates to the medical history of birth mothers, for example, the use of things like alcohol during pregnancy. For children adopted internationally, there may be little or no information on biological parents, their caretaking history before adoptions, and so forth.
Fortunately, most of the time, children and their adoptive families do well. The usual practice now is to encourage parents to be open about adoption to discourage the problem of family secrets that were observed in the past. Sometimes children, as they become older, become more interested in their birth parents or birth countries. As is true for children in a divorce, the child may feel personally responsible in some way for their adoption. There may be fantasies about why the child was unwanted. Sometimes, the wish of the child to protect their adoptive parents from these concerns complicates discussion. Adolescence, in particular, may present some special challenges given that the normative developmental task is individuation from parents and leaving adoptive parents may be particularly difficult. Sometimes, adoptees will search for information on biological parents. This can be the source of distress and sadness for the adoptive parents, because it may be experienced as rejection even when this is not in fact intended.
Adoptive parents face some unique challenges including anxiety and/or concerns relative to delay in the actual adoption process sometimes undertaken when parents have trouble conceiving. Adoption is of relatively low risk, although, as a group, there are somewhat higher rates of externalizing problems—particularly in adolescent boys. There is also some suggestion of increased risk for mood and anxiety problems. As compared to multiple foster placements, the stability of adoption is a benefit and one usually associated with a much better outcome.
Adoption of children within the child welfare system has been an important and controversial topic for many years. In the past, overtly expressed policy favored reunification of child and parent(s) but this has now shifted to encourage early foster placement to insure stability. Unfortunately, it is clear that adoptive children are more likely to have problems if they have been placed at an older age. Mental health clinicians will, of course, tend to have contact only with situations where the adoptive child is not doing well. Occasionally, clinicians see situations where the adoption is not completed.