The Subpoena in the Divorce: A Twelve-Year-Old's File and Two Warring Parents
An LPC has seen a 12-year-old boy for eight months for anxiety related to his parents' divorce. Both parents signed the informed consent, and the counselor has met separately with each parent for collateral sessions. The father's attorney serves a subpoena duces tecum demanding "the complete client file, including all notes and all communications with the mother," returnable in 10 days, asserting that the mother's cooperation "isn't needed because the father has joint managing conservatorship." The mother's attorney calls and demands that nothing be released and that the counselor "stay out of the litigation entirely." The file contains the mother's disclosures about her own psychiatric treatment. The counselor's malpractice carrier has not been called.
1. What is the counselor's correct response to the subpoena?
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Neither of the two loudest voices is right.
Do not ignore it. A subpoena is a legal command; failing to respond at all risks a contempt motion. Do not comply by producing records, either. A subpoena issued by a party's attorney is not a court order overriding privilege. The psychotherapist-client privilege belongs to the client - here, the child, with the conservators acting on his behalf - and the counselor holds it in trust.
Correct sequence: (1) Calendar the return date. (2) Send a timely written objection/assertion of privilege to the issuing attorney, copying both parents' counsel, stating that records will not be produced absent a written authorization from the proper party or a court order. (3) Ask the parents to consult their attorneys. (4) If a court orders production, request in camera review and the narrowest possible disclosure. (5) Notify the malpractice carrier and consider a consultation with an attorney who handles records disputes. (6) Document every contact verbatim.
The conservatorship argument is a trap. Joint managing conservatorship does not mean either parent can waive the child's privilege unilaterally, and it certainly does not give the father's lawyer the right to the mother's collateral disclosures.
2. How should the mother's collateral disclosures and the child's own statements be handled if production is ultimately ordered?
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The file is not one undifferentiated document.
Segregate by source and by privilege holder. The mother's statements about her own psychiatric treatment are her information; she may hold her own privilege in them, and the child's privilege does not swallow it. The child's therapy content belongs to the child, not to whichever parent is paying or litigating.
Practical handling: (1) Maintain a log identifying each document, whose information it contains, and the basis for withholding or redacting. (2) Propose redaction of third-party and collateral material rather than wholesale production. (3) Ask the court to review in camera rather than releasing to the father's attorney directly. (4) Seek a protective order limiting use to the litigation.
Clinical posture: the counselor is not the custody evaluator and should resist being recruited as an expert for either side. Ongoing treatment depends on the child believing the room is safe; if the counselor becomes a pipeline to one parent's attorney, therapy is effectively over. Note in the record the child's understanding of confidentiality and how it was explained.
3. What should the counselor do clinically while the subpoena is pending?
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Treat the legal event as a clinical event.
Neutrality. The counselor must not become an advocate for the mother, a witness for the father, or an investigator of either household. If she begins collecting evidence, the treatment alliance collapses and she risks becoming a partisan in a custody dispute.
Communication rules: no substantive case discussion with either attorney without a signed authorization or a court order; no ex parte coaching of one parent about what to say in court; if contacted, route the attorney to the objection letter.
With the child: continue treatment focused on anxiety, address in age-appropriate terms what a subpoena is and what the counselor can and cannot share, and reinforce that sessions are not a reporting channel to a parent. Watch for symptom escalation and document it.
With the parents: send identical written notices to both, confirming the counselor will not release records absent authorization or court order and will not discuss the case with counsel. A brief joint meeting, if both agree, can reset expectations.
Documentation and support: contemporaneous notes on all contacts, a consultation with a colleague or ethics consultant, and a call to the carrier. Abandoning the case to avoid the subpoena would itself be a termination problem.