The Custody Evaluation Request
You are an LMFT in private practice in Bend. For nine months you have seen Dana and Lee for couples therapy and their two children, ages 8 and 11, in family sessions. Dana files for divorce. Lee's attorney serves you with a subpoena for 'all therapy records and a custody evaluation.' Dana's attorney sends a letter asking you to write a report recommending that Dana receive primary custody. Lee calls and says he will report you to the Board if you release anything. Both parents signed an intake consent saying records may be released only with written authorization or court order. You have never performed a custody evaluation. Dana's attorney offers to pay your usual evaluation fee.
1. What scope-of-practice and role problems arise if you accept the custody evaluation, and how should you respond to the request?
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Accepting the custody evaluation would create an impermissible dual role. You have been the family's treating therapist; a custody evaluation is a forensic, quasi-adversarial role requiring impartial data gathering from both parents, children, and collateral sources. The roles carry different allegiances, confidentiality expectations, and methods. Oregon scope and ethics rules require avoiding conflicts that impair objectivity or exploit the therapeutic relationship. The fact that one attorney wants a recommendation favoring Dana makes the pressure explicit. You should decline the evaluation, explain the role conflict in writing to both attorneys and parents, and refer to a qualified custody evaluator who has not treated the family. Do not accept even if both parents say they agree; consent does not cure the conflict. You may offer a factual treatment summary only if authorized or ordered.
2. How should you handle the subpoena, the request for a custody recommendation, and Lee's threat to complain?
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A subpoena is not a court order and does not by itself waive privilege. Do not release records or write a custody recommendation on the subpoena alone. Assert privilege on the clients' behalf, notify both clients so they can seek counsel or give written authorization, and seek a court order or valid authorization before releasing. If ordered, release only what is ordered and seek clarification if the order is overbroad. Do not provide a custody opinion; a treating therapist may offer a factual summary if properly authorized or ordered, but should avoid ultimate custody recommendations. Lee's threat does not change your legal and ethical duties; do not retaliate or alter records. Document all contacts, the subpoena, the attorneys' requests, and your responses. Consult your own attorney and professional liability insurer.
3. What documentation and consultation steps should you take now?
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Document the role-conflict analysis, the written declination, the privilege assertion, and every consultation. Keep clinical records separate from forensic correspondence, and do not blend the two files. Record what each parent and attorney requested, the dates, and your responses. Notify your liability insurer early. If a Board complaint is filed, respond truthfully and on time; do not alter records or contact the complaining party in a retaliatory way. Consult the Board's rules on record release and subpoenas, and consider a formal consultation with a colleague experienced in custody matters. The goal is to preserve the therapeutic record, avoid a forensic opinion, and let the court process resolve disclosure.