Treating Therapist Asked to Give a Custody Recommendation
Dr. Patel, a Georgia psychologist, has treated 9-year-old Eli for ADHD and anxiety for 18 months. Eli’s parents are divorcing. Father’s attorney serves a subpoena for Eli’s complete record and asks Dr. Patel to write a letter saying Eli should live primarily with father. Mother left a voicemail objecting to any release. Dr. Patel has never performed a custody evaluation, has seen mother and father in collateral sessions, and has noted father’s frustration with mother. The subpoena is signed by a clerk, not a judge, and no authorization is attached. Dr. Patel believes the record contains mother’s mental health history and Eli’s statements about both parents. The attorney says, “A subpoena is a court order; you have to comply.”
1. Must Dr. Patel produce the complete record in response to the subpoena?
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No. A subpoena duces tecum signed by a clerk is not, by itself, a court order that overrides the psychotherapist-patient privilege. Georgia recognizes a psychotherapist-patient privilege, and the psychologist generally should assert it on the client’s behalf unless the client or the client’s legal guardian gives valid authorization or a judge orders disclosure after a privilege determination. For a minor, the analysis includes who may consent and whether both parents have legal access; a parent’s objection is a warning sign, not something to ignore.
Dr. Patel should not produce the entire record on receipt of the subpoena. He should contact the attorney, explain that he will respond only as permitted by law, notify the mother and father or their counsel, and seek a written authorization or a court order. If necessary, he can file or support a motion to quash or for a protective order. He should preserve the record and document the subpoena, the objections, and any communications. If a court ultimately orders production, he should produce only what the order requires, not everything in the file.
2. Can Dr. Patel write the letter recommending that Eli live primarily with father?
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Dr. Patel should not write that letter in his treating role. A custody recommendation is a forensic opinion about the best interests of the child, typically requiring a custody evaluation with a defined scope, informed consent from the relevant parties, collateral interviews, observations, and review of multiple sources. Dr. Patel has been Eli’s treating psychologist, has seen the parents in collateral sessions, and has noted father’s frustration with mother. Switching into a custody evaluator role for the same family creates a multiple-relationship problem and risks confusing therapeutic and forensic roles.
He can provide a treatment summary limited to Eli’s clinical presentation, progress, and treatment needs, if authorized or ordered. He should avoid ultimate custody opinions and should explain why. If the court needs a custody evaluation, the judge should appoint a qualified evaluator who has no treating relationship with Eli and who can obtain informed consent or a court order. Dr. Patel can cooperate with that evaluator within the limits of confidentiality.
3. How should Dr. Patel handle the mother’s mental health history and Eli’s statements about both parents if production is ordered?
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Even if a court orders production, Dr. Patel should not dump the entire file. He should read the order carefully and produce only the categories the judge requires. Information about the mother’s mental health treatment that is not about Eli’s treatment may be privileged or outside the order, and Eli’s statements about each parent may include third-party information that should be redacted unless specifically required.
He should prepare a redaction log, keep an unredacted copy, and document the legal basis for each redaction. If the order is ambiguous, he should seek clarification rather than guess. He should also notify the affected parties so they can seek a protective order. The attorney’s threat of a motion to compel does not change the analysis; Dr. Patel’s obligation is to comply with lawful process, not to surrender privilege because an attorney demands it.