Safe Haven Counseling: An Overview, Part I

by Annette Burns on March 23, 2017

What is safe haven counseling?  Sometimes, it’s called “safe harbor counseling”, and these are the same thing.     I have no idea how a harbor differs from a haven, and in this context, it doesn’t matter.

Generally, if a court orders safe haven counseling, the court’s intent is that the child have a counselor who cannot be compelled to testify at court about what the child has said in the counseling sessions, and the counselor’s records of those sessions cannot  be subpoenaed by either parent.  The reasoning is that the child should have a safe place to talk about his or her concerns and problems without worrying that everything he says will end up in court.  It preserves doctor-patient privilege for the child.

As this post in its original form became way too long, I’ve divided it up into four separate posts, covering:

  1. Can the parents be prevented from getting access to their own child’s counseling records?   This first section covers how courts have been handling a situation where one parent wants the children’s records released, and the other doesn’t.
  2. What Arizona statutes involve a child’s therapy records?
  3. If the parents do agree to make a child’s counseling “safe haven”, what does that agreement look like?  And will the court enforce that agreement?   (Spoiler:   That last question isn’t answerable yet.)
  4. How are safe haven agreements misused in court proceedings?

A few cases, mostly from other states, have examined “safe haven” counseling for children.   We can review those cases and try to guess what an Arizona court might do if a parent rejects safe haven counseling and tries to get the counselor’s records into evidence, or subpoenas the counselor to testify.

Charepoo v. Dahnad is an unpublished Arizona decision on the safe haven issue.   Division 1 of the Arizona Court of Appeals agreed with the trial court that the children’s therapy records would not be released to Father, based on the therapist’s opinion that release of the records would not be in the children’s best interests.   This memorandum decision references ARS 25-408J (the presumption of a parent’s entitlement to the child’s records) and its exception if such disclosure would “endanger seriously the child’s or a parent’s physical, mental, moral or emotional health.”  The trial court’s finding that the records would not be released was upheld.   This decision does not mention ARS 12-2293B.  (This statute will be mentioned in Part Two)   The Charepoo case cannot be cited as precedent in Arizona, unless it qualifies under Supreme Court Rule 111(c), as it is not a published opinion.

In Bond v. Bond (Kentucky), 887 S.W. 2nd 558 (1994), a Court of Appeals in Kentucky reversed a trial court’s ruling that Mother could claim the psychotherapist-patient privilege on behalf of the children in a custody case.  This was a post-decree modification of custody action.  The claim of privilege prevented the therapist from testifying about the child’s disclosures to her, and the appellate court found this to be error.   The Kentucky court noted that it had reviewed this case “with deep concern about the apparent oversight of the children’s rights.”     The court noted that in contested custody cases, the personal interests of the contestants — the parents — generally obliterate the child’s interests, and it therefore made no sense to allow the child’s psychotherapist privilege to keep out important testimony about the child’s well-being.     While it appeared that the child had some mental or emotional disorder, finding out what the problem was had been thwarted by Father’s claim of the privilege on behalf of the child.   “In our opinion, parents involved in a custody dispute should not be allowed to assert any privilege on behalf of their child simply because their interests are divergent from the child’s interests.”  This opinion has no discussion about the possibility of appointing a GAL or best interests attorney to advocate about the child’s privilege.

A GAL on behalf of the child was used in a New Hampshire Case, Berg v. Berg, 886 A.2nd 980 (2005) .   The Berg decision includes an important discussion of the “fundamental right to parent” and how it intersects with a child’s right to privacy.    In Berg,  Father wanted the therapist records produced, as the children were not exercising parenting time with him, and Mother had sent the children to therapy to address their resistance to Father.     The GAL moved to have the therapists’ records sealed, and Father objected.   The trial court denied the motion to seal, saying that Father had the right to see his children’s medical records and that right superceded the children’s right to privacy.  The appellate court, on the other hand, found that children do have a right to privacy, and the trial court had the authority to seal the children’s records over the objection of a parent.  The trial court had denied the Motion to Seal without specifically deciding if the records were protected by a therapist-patient privilege.  The trial court had simply relied on Father’s “fundamental right to parent”.

In overturning the trial court’s refusal to seal the records, the Berg court cited Bond (the Kentucky case), noting Bond’s language that the parents’ disputes in a bitter custody battle often leave the children’s best interests out in the cold. The Berg court found substantial case law that supported protection for a child’s therapy records during a custody dispute.     “We conclude that parents do not have the exclusive right to assert or waive the privilege on their child’s behalf.   The trial court has the authority and discretion to determine whether assertion or waiver of the privilege is in the child’s best interests.”

When a privilege issue arises, the trial court cannot rely solely on the opinion of a parent, a therapist, or a GAL in determining whether records will be released. The trial court must engage in fact-finding to determine if waiver or assertion of the privilege is in the child’s best interests.  That decision, in appropriate circumstances, may even be made by the child himself.   The court also may appoint a GAL and order the release of the records to the GAL for a determination.  Or, the court may conduct its own in camera review of the records.

The trial court’s duty to make findings before releasing (or denying the release of) a child’s records was emphasized again in Liberatore v. Liberatore, a 2012 New York case.   The “waiver or suspension of statutory privileges is a drastic remedy which should only be granted upon a showing by the party seeking the examination of the protected records that a party’s mental or emotional condition is in controversy.” “That [a] determination must be based solely upon the best interests of the child in accordance with the standard expected of a wise, affectionate and careful parent” [citations omitted] suggests that a judicial determination is required instead of a unilateral decision on behalf of the child. . .  by a conflicted parent then engaged in a bitter custody battle.”

A Hawaii court ruled that generally, parents don’t have control over the child’s privilege in a contested custody proceeding.  I wrote about that case,   PO vs. JS (2016) in this blog post last year.

That’s it for Part One, on how the courts have handled the therapy issue so far. Part Two will discuss Arizona statutes on this subject.

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