Subpoena for Records in a Custody Dispute
Marcus, an Arkansas LPC, treated a 9-year-old child for anxiety for eight months. The parents are divorcing, and the father's attorney serves Marcus with a subpoena duces tecum demanding the child's entire clinical file, including Marcus's process notes, plus a demand that Marcus appear to testify about statements the child made about each parent. The mother, who consented to treatment, calls Marcus and says she revokes any consent to release records. The father says he has joint legal custody and therefore has equal rights to the file. No court order has been entered, and the subpoena is signed by the attorney, not a judge. Marcus is unsure whether he must comply by the return date.
1. Explain whether the attorney-issued subpoena by itself compels Marcus to produce the full record, and what he should do before the return date.
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An attorney-issued subpoena is not a court order and does not by itself override confidentiality or privilege. Marcus should not simply mail the file. He should notify the parents (and through them, counsel) that he has received the subpoena, assert confidentiality on behalf of the child, and seek guidance or a protective order from the court if the parties will not resolve it. He should verify the child's legal status as client and clarify with counsel what is actually sought. If a court orders production, he complies with the order's scope; absent an order, he holds the records and documents his reasoning. Producing the entire file on an attorney's signature alone risks unauthorized disclosure and is the error the scenario is testing.
2. How should Marcus handle the parents' competing claims of authority over the child's record and the request for process notes?
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Joint legal custody generally gives each parent authority regarding the child's welfare, but it does not automatically waive the child's confidentiality or entitle either parent to the therapist's private process notes. Marcus should confirm custody terms and any allocation of decision-making about health care. He should distinguish the formal clinical record (which a custodial parent may have a legitimate claim to in some circumstances) from process notes, which are the therapist's working impressions and are generally withheld absent a court order. The mother's revocation does not by itself block a father with equal rights, and the father's rights do not by itself compel disclosure. The safe course is to release only what is clearly authorized, seek a court ruling on the disputed portions, and keep a written log of each request and response.
3. Marcus is asked to testify about what the child said regarding each parent. What limits apply, and how should he frame his testimony?
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He should testify only within the scope of what a court orders and only to information relevant to the child's treatment and best interests, not as an advocate for either parent. He should avoid repeating verbatim statements that are not necessary, distinguish observation from hearsay, and decline to offer opinions outside his competence such as custody recommendations unless qualified and ordered to do so. He should not become an investigator for either side. Before testifying, he should clarify the court's order, consult his own counsel or carrier, and prepare to assert privilege where the order does not reach. The framing is clinical and neutral: what he observed, what was clinically relevant, and the limits of his role.