Custody Issues in Psychiatry: Risk Management Tips for the Treatment of Children and Adolescents of Separated or Divorced Parents
Scott D. Hammer
Of Counsel, Wilson Elser

Currently, more minors (those under the age of 18) are seeking and receiving mental health treatment than ever before. Since the divorce rate is going up, the treatment of the mental health of children with divorcing parents is on the rise, too. The treatment of minors has a unique set of ethical risks and legal minefields, further complicated due to their family situations. Dealing with parents that are married can, at times, be challenging; dealing with separated or divorced parents is a whole different ballgame.

If you are going to be treating children and adolescents, you must learn your state’s laws and regulations regarding consent and confidentiality for minors.  Each state has its own laws for consent and confidentiality, and often within a state those laws can be inconsistent. Frequently there are different laws for the age of consent for inpatient versus outpatient treatment.


Recently, there has been a major increase in legal and ethical complaints filed by parents due to lack of consent issues. Sometimes it is difficult to get married parents’ consent to treat their child.  If the parents are separated or divorced, obtaining consent from a parent can be nearly impossible, if not problematic. Given the often contentious nature of divorce and custody proceedings, mental health professionals should use extra care and caution when treating children of divorced or divorcing parents. Divorce proceedings are adversarial and confrontational which is antithetical to empathic and caring counseling sessions.

When the minor’s parents are separated or divorced, your “Spidey senses” should always be tingling.  Psychiatrists should take extra steps to determine which parent has legal authority to consent to mental health treatment. You should never presume that the parent who first contacted your office and shows up to the initial appointment has the sole authority to consent to treatment. Which parent has custody? Which parent has legal authority to make medical and mental healthcare decisions for their child? Can a psychiatrist ever be sure? Court documents (divorce decrees and parenting agreements) specify each parent’s powers, rights and responsibilities for medical and mental care of the child. It is unfortunate, but many times parents will lie about this issue. Some providers require the parent to bring a copy of the court documents. This mechanism is not foolproof, however, since I have seen parents bring in fake or expired orders and fraudulent agreements. Clearly, the clinician is not required to run over to the courthouse and spend hours reviewing the divorce file to determine the issue of parental authority.

From a risk management point of view, the best way to minimize liability regarding consent for treatment is to get both parents’ consent to treat their child.  This is often difficult or perhaps impossible, but it’s worth it in the long run. Getting consent from both parents should minimize the chance of being ethically or legally challenged. Moreover, from a family systems perspective, it’s prudent to get both parents involved in therapy for their child or at least have them agree to it. It’s always better to be transparent than to treat a child secretly, surreptitiously, or under the cover of darkness. Over the years, I have seen hundreds of malpractice cases and ethical charges when one parent did not know and was never informed about the treatment of their child.

Getting consent should not simply be the act of having the parents sign an Outpatient Service Agreement. Consent with patients and parents should be actual consent: advising the parents regarding the nature of treatment, the treatment modalities, the risks and benefits of therapeutic treatment and/or psychotropic medications. During this consent discussion, the therapist should advise both the minor and the parents how much clinical information can be shared with the parents and under what circumstances (see below). Do not allow one parent to tell you, “I’ll get my ex-spouse to sign the informed consent document and return it to you next visit.” They may never tell the ex-spouse and simply forge the signature.

I recommend conducting informed consent discussions face-to-face or via a video conference. If that is not possible, discuss consent over the phone.  If one parent refuses to discuss informed consent or refuses to consent, I recommend not treating that child.

Although this “both parents’ consent” policy may lead to some “loss” of potential clients, I would rather have my clients lose patients due to lack of consent of both parents instead of losing lawsuits due to that lack of consent. The cases where parents won’t agree to treatment often prove to be problematic anyway.  This is especially true when psychotropic medications are involved, as some parents are simply against prescribing mental health medications to their children.

Another example of the lack of consent problems can be found in this email that I received from a client:

Last week I had my initial treatment session with a 16-year-old female client. Her mother brought her in and informed me that the father filed for divorce 3 weeks ago. The client self-injured and was taken to the ER last week. Daughter stated that she doesn’t want to see anyone else but me. Dad called me and made it clear he doesn’t want me to see his daughter anymore. Dad did not tell me why he didn’t want his daughter to continue seeing me.  Mom advises that Dad is a long time alcoholic and “irrational thinker.”

Mom called and begged me to keep seeing her daughter. The daughter plans to refuse any services that dad tries to set up for her unless it’s me. Dad called again and said I was not to see his daughter.

1. Can I legally see the daughter without dad’s consent?
2. Should I see the daughter without dad’s consent?


What would you do?  Would you treat this child or not? Bear in mind that under Illinois law (where I practice) only one parent needs to consent for mental health treatment of minors. Therefore, my client “could” legally treat the daughter without Dad’s consent. But should she? My client stated to me, “I am the only one who can treat this child and I must save her.” Always remember that your job is not to be a superhero and save every potential patient. Your job is to be a good, competent clinician. There were, in fact, other psychiatrists who could treat this patient. This family seemed problematic even before treatment began. Accordingly, even though my client could legally and ethically treat this daughter, my risk management recommendation was to not treat this patient and to refer her out.  Was my advice cold-hearted and lacking in empathy? Or did I protect my client?

Legal Guardian or Guardian Ad Litem

During divorce proceedings, the judge will often appoint a third party (guardian ad litem, legal guardian, child’s representative, state agency, etc.) to represent the interests of a minor. The responsibilities of this third party are denoted in the court order appointing the guardian. Psychiatrists should review the court order to determine the guardian’s scope of authority concerning consent and disclosure of information. Like providers, guardians have the child’s best interests at heart.

Minor’s Consent

Some states allow minors to consent to their mental health treatment, with or without notice to or consent by the parents. For states that allow minors to consent, the minimum age of consent varies. Sometimes laws vary for the particular mental health services being provided. For instance, in Illinois, any minor 12 years of age or older may request and receive limited outpatient counseling services (eight sessions) without the consent of a parent or guardian. However, for voluntary inpatient services the minimum age of consent is 16 years old.

Be very cautious in deciding to treat a minor without the parents’ knowledge and consent. Once again, transparency and parents’ agreement and involvement in the therapeutic process should be given paramount importance.

There are other times certain states allow minors to consent to treatment in specific situations. Some examples include a mature or emancipated minor. These instances are infrequent and will not be addressed in this article.

Confidentiality and Privacy Issues

As noted above, during the informed consent discussion with parents and minors, the psychiatrist must discuss the issues of confidentiality and privacy. The degree of any confidential information that can be disclosed to the parents should be discussed so that both the minor and parents understand this important issue. Although many states’ laws are consistent regarding the right to consent to treatment and the right to confidentiality, some states have inconsistent laws. Do not confuse the right to consent with the right to disclose mental health records and communications. Parental consent for treatment should be considered separately and independently from the adolescent’s right to confidentiality during treatment.

For example, in Illinois, either parent of a child under 12 years-old is entitled to examine the child’s mental health records and obtain all information from the psychiatrist. Illinois law makes absolutely no distinction between a custodial or a noncustodial parent regarding disclosure of mental health records. The most awful parent in the world has equal rights to obtain his child’s mental health record as the best parent in the universe.

Problems arise when state laws do not grant the parents unlimited authority to talk with their child’s therapist or obtain copies of the therapist’s records. In Illinois, if the patient is between the ages of 12-18, both the minor and the therapist can deny the parents full access to patient’s records and communication. Many parents believe they should be entitled to know everything that goes on in therapy and everything said by their children. Often parents do not care about the therapeutic alliance between the clinician and their child. They only care about themselves.

Minors need someone to truly talk to and have someone listen. They need to share their true emotions and feelings with someone they can trust! Confidentiality is especially important to adolescents and often the foundation to successful therapy. Minors may be reluctant to tell their psychiatrists certain things knowing that whatever they say or whatever the clinician notates will be disclosed to their parents. How does a provider balance the importance of confidentiality with the parent’s need to know everything about their child? Psychiatrists should use their therapeutic tact and skill to convince minor patients to allow disclosure of confidential information only when necessary.

Issues During Treatment

    1. Parents often use their children as pawns in divorce proceedings.  They try turning the child against the other parent.  Be aware of parents trying to manipulate their children.
    2. Parents will try to get clinicians to testify for or against the other parent regarding custody, visitation and other divorce issues. They try to “win” the psychiatrist over. Remember, you must keep the best interests of the child at heart. You must maintain your boundaries at all times.
    3. Disagreements and arguments arise between the parents and they want you to decide the issue. You’re not their private referee, you are their child’s psychiatrist.  Refer them back to their attorneys or the judge. Do not allow yourself to be in the middle of a fight between two parents.
    4. Parents use their child’s provider as their own therapist. You are treating the child, not the parent. I suggest not treating multiple family members due to boundary and confidentiality issues.
    5. Never feel threatened when a parent wants to speak with you. When possible, try to give “equal time” to both parents so no one accuses you of “liking my ex better than me.”
    6. Obtain the custody agreement as to which parent has legal authority to make medical and mental health care decisions for the child.


When dealing with minors of separated or divorced parents, psychiatrists should try to familiarize themselves with the state laws in question and, when necessary, seek consultation from attorneys who know mental health law.

Scott Hammer-new

About the Author

Scott Hammer received his undergraduate degree at Georgetown University and earned his Juris Doctorate at John Marshall Law School. For over 35 years he has concentrated his practice on representing mental health professionals. He has considerable experience in handling mental health malpractice cases, risk management issues, mental health confidentiality, contracts and defense of licensure actions. Scott has held leadership positions on the Mental Health Law Committees of the Illinois State and Chicago Bar Associations. He is Of Counsel to the national litigation law firm Wilson Elser. He has handled more than 2,000 psychiatric malpractice cases and events in his career.