Subpoena, Custody Letter, and the Treating Therapist's Role

Do not release anything, and do not ignore it. Log the date received and the response deadline; both matter later.

Classify the demand. Is it a subpoena from an attorney or a court order signed by a judge? An attorney's subpoena does not by itself override privilege in most jurisdictions and typically requires notice to the client or a signed authorization; a valid court order generally does compel. Do not assume the two are the same, and do not assume the subpoena's language is accurate about what it can obtain.

Notify the privilege holders. Write to Nadia and to Owen separately that their records are being sought, that the privilege is theirs, that they may object, and that you will not produce records without a signed authorization or a court order. Do not discuss one partner's response with the other.

Call your malpractice carrier or an attorney before producing anything. Ask about a motion to quash, a protective order, or an in camera review. This is what you pay for; use it.

Release minimally if and when compelled. Redact third-party information, including anything about the two children you have never met and any information about the other partner in Nadia's individual notes. Separate Nadia's individual record from the conjoint record - the individual record is hers alone to authorize.

Document every step - receipt, notice, consultation, what was produced and under what authority.

The judgment being tested: 'it is just a subpoena, I will send the file' is the single most common way therapists create liability for themselves and harm for clients.

No - not a custody recommendation. This is a role conflict, not a paperwork question.

Why. Treating therapist and custody evaluator are distinct roles with distinct methods and distinct duties. A custody opinion from a treating therapist rests on non-representative data: you have never met the children, you have heard one partner's account of the marriage with no collateral contacts, no home observation, no standardized parenting measures, and no balanced multi-informant design. Forensic guidelines and the professional literature are clear that treating therapists should not offer custody opinions; such letters are frequently excluded, can damage the case of the parent who requested them, and expose the clinician to board complaints and licensing action.

What you can write: a factual, time-limited summary of what you did - dates of service, attendance, presenting problems, treatment goals, your observations of the couple's interaction in session, and your clinical impressions of each partner's functioning as you observed it. Label it explicitly as treating-therapist observations, not an evaluation or a recommendation.

How to handle Nadia. Tell her in a session, not by email alone, and expect it to land as betrayal - from her side, you are refusing to help her protect her children. Validate the fear, explain the role limit in plain language, and offer the factual summary to both parties. Her pull ('you know what he's like') is the same coalition pressure that has been in the room since session one.

If she insists or threatens a complaint: consult your carrier and an ethics consultant, put your explanation in writing, and stay in the treating role rather than drifting into an advocacy role under pressure.

Separate structure from content. The fact that individual sessions occurred within the conjoint frame is part of the treatment record and is disclosable - both partners were told the policy at intake, so both already know individual contacts happened. The content belongs to Nadia and requires her specific authorization; your general consent form does not cover attorney releases, and neither does Owen's signature on it.

What this means for your neutrality. You are structurally asymmetric: you hold information about one partner that the other does not have. That asymmetry is defensible only if it is transparent. Prepare to describe the policy itself - why it exists, how it was explained, what you would have done if a secret had been disclosed. A deposition is a bad place to discover that your policy was never written down.

Practical preparation:

• Review the record for anything you would not want read aloud, and consult counsel on each item.
• Expect questions designed to establish coalition ('didn't Nadia tell you he was impossible to co-parent with?'). Answer factually, stay in your role, and do not speculate about the children.
• Avoid offering opinions on parenting capacity, custody, or the children's best interests - you have no basis and no role.
• Ensure Owen's attorney receives the same factual summary as Nadia's; parity is your best protection.

Also reconsider the treatment frame. The couple is separated; conjoint work may be ending. Decide deliberately whether you continue with either partner individually. Accepting one of them into individual therapy mid-dispute, without careful thought, converts a couples therapist into a partisan witness - and that decision, not the subpoena, is where most of these cases go wrong.