For years, I have had a philosophy of not entering into a custody action without some supporting testimony from a mental health professional. Often, there are issues reported by the children that can be brought out through the testimony of the mental health professional and one doesn’t want the other party to know this is being investigated. We might also not want to subject the children to retaliation or brainwashing prior to the evaluation. So, there are good strategic and personal reasons not to tell the other parent about the evaluation. However, there seems to be a rising tide of objection by Judges to this tactic.

I am unaware of any law or code of professional responsibility that prevents it. I am also unaware of any regulations of mental health professionals which prevent them from seeing a child without both parent’s permission. We do know that Joint legal custody implies and even requires communication about health issues and maybe this is what the Judges are hanging their hat on.

I have even had the experience in a case of an opposing party filing a disciplinary complaint against a counselor for seeing his child without his knowledge, even though there are no specific regulations on the subject for that profession. This seems somewhat illogical because I do not believe the reaction would be so great if a parent took a child to a doctor for a sore throat without the other’s knowledge.

One way or the other, litigants, attorneys and counselors need to be aware that arranging for psychological treatment or evaluation without the other parent’s consent and knowledge, can have negative repercussions and should be done only with great care. Abuse allegations may be a situation where there may be no choice but to take the risk.
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