Treating Counselor Asked to Perform a Custody Evaluation
Lena is an LPC who has treated 9-year-old Noah for 14 months for generalized anxiety and school refusal. Noah's parents, Amy and David, are divorcing. David's attorney sends Lena a subpoena for her records and a letter asking her to prepare a 'custody evaluation' and testify that David should have primary custody. Amy has not consented to any release. Lena has met Amy only in the waiting room and has never interviewed David beyond brief check-ins at pickup. Lena believes David is the more consistent parent and that Noah's anxiety worsens after visits with Amy. The attorney offers $3,000 for the evaluation and says the court 'just needs your opinion.' Lena has no forensic training.
1. Can Lena accept the attorney's request to perform a custody evaluation and testify? Analyze scope, competence, and multiple-role issues.
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Issue. Whether a treating counselor may accept a forensic custody evaluation role for the same family.
Rule. Oregon's scope of practice for LPCs includes appraisal, but a counselor must practice within the boundaries of competence and must avoid multiple relationships that impair objectivity or exploit the client. Forensic roles require specific training, collateral interviews, balanced evaluation of all parties, and informed consent. The treating counselor's role is to provide treatment, not to opine on custody.
Analysis. Lena has treated Noah, has never interviewed Amy or David in a forensic context, and has no forensic training. Accepting $3,000 to evaluate custody would combine the therapeutic role with an adversarial evaluative role, creating a conflict of interest and risking harm to Noah's treatment. Her belief that David is more consistent is based on limited contact and is not a forensic conclusion. A custody evaluation requires interviewing both parents, observing parent-child interactions, reviewing collateral records, and applying forensic methods; Lena has done none of these. Providing a custody recommendation would exceed her role and competence.
Conclusion. Lena should decline the custody evaluation. She may provide a factual treatment summary or testify as a fact witness if properly authorized and subpoenaed, but she should clarify that she is not offering a custody recommendation.
2. What authorization or legal process is needed before Lena releases records or speaks with the attorney, and how should she handle the subpoena?
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Issue. The authority needed to release a minor's records and respond to a subpoena.
Rule. A subpoena is a demand for records or testimony, not a client authorization. Oregon confidentiality law and, if applicable, HIPAA require a valid written authorization or a court order before disclosure. For a minor, both parents may have legal authority unless a court order limits one parent's rights. The counselor should assert privilege and seek guidance when the parents disagree.
Analysis. Amy has not consented, and the attorney represents David. Lena should not release records based on the subpoena alone. She should notify both parents, consult an attorney, and respond to the subpoena with objections or a request for a protective order if necessary. If a court orders release, she should comply with the order and disclose only what is required. She should not discuss the case informally with David's attorney or give an opinion without a proper basis and authorization.
Conclusion. Lena needs a valid authorization from the appropriate legal guardian or a court order. Until then, she should preserve records, assert confidentiality, and avoid informal disclosure.
3. What is the appropriate response to the family and to the court, and how should Lena document it?
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Issue. Managing the family's expectations and the court's request without violating ethics or confidentiality.
Rule. Counselors must clarify their role, obtain informed consent, avoid conflicts of interest, and document significant decisions. A treating counselor may testify as a fact witness about treatment but should not offer a custody opinion outside their role.
Analysis. Lena should explain to both parents, preferably in writing, that she is Noah's therapist and not a custody evaluator. She can offer a referral to a qualified forensic evaluator and explain that she will provide treatment information only with proper authorization or court order. If deposed or called to testify, she should describe treatment, diagnosis, and progress, and state the limits of her role; she should not recommend custody. She should document the attorney's request, the $3,000 offer, her refusal, the parents' responses, and any consultation.
Conclusion. The defensible response is role clarification, referral, and careful documentation. Lena should neither become an advocate for David nor abandon Noah's treatment because of the litigation.