CBA Record July-August 2020

It’s Not Broken, So Don’t Try to “Fix” It: Keep Counseling Confidential By Kathryn L. Ciesla

T he Illinois State Bar Association’s Family Law section is actively pursuing modification of §607.6 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The concern loudly voiced by attorneys – both those who represent the parties as well as those who serve as a guardian ad litem (GAL) or child representative – is that §607.6 in its current form does not permit them access to a parent or child’s mental health infor- mation if the therapist is court appointed. The claim by lawyers seeking access is that this privileged information is critical to the attorney/GAL in making best interests parenting recommendations to the court, and the legislature was “wrong” to create a complete bar to a therapist’s notes and observations. For the past three years, attorneys have tried to draft court orders and argue their way around the protections of confiden- tiality provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act, stating that informed parties can – and should – waive §607.6. The problem is: They can’t. Even more so: They shouldn’t. IMDMA Confidentiality Provisions Enacted on January 1, 2017, Section 607.6 of the IMDMA (750 ILCS 5/607.6) pro- vides that: (a) The court may order individual counseling for the child, family counsel- ing for one or more of the parties and the child, or parental education for one or more of the parties if it finds one or more of the following: (1) both parents or all parties agree to the order; (2) the child’s physical health is endangered or that the child’s emotional development is impaired; (3) abuse of allocated parenting time under Section 607.5 (750 ILCS 5/607.5) has occurred; or (4) one or both of the parties have vio-

lated the allocation judgment with regard to conduct affecting or in the presence of the child *** (d) All counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party. This provision’s close cousin, Section 607.5 of the IMDMA regarding visitation abuse, was enacted at the same time, and contains a similar provision regarding the confidentiality of counseling: (c) If the court finds by a preponder- ance of the evidence that parent has not complied with the allocated parenting time according to an approved parenting plan or a court order, the court, in the child’s best interests, shall issue an order that may include one of more of the following: * * * (3) upon consideration of all relevant factors, particularly a history or possibility of domestic violence, a requirement that the parties participate in family or indi- vidual counseling, the expense of which shall be allocated by the court; if counsel- ing is ordered, all counseling sessions shall be confidential, and the communications in counseling shall not be used in any manner in litigation nor relied upon by a expert appointed by the court or retained by any party; “Routine” Consent Forms For years, guardians ad litem and child representatives have given generic consent forms to parents, asking them to waive their personal therapist/patient privilege during litigation regarding their children. The parents (often blindly) sign consents on behalf of their minor children, also because their attorney or the GAL asks them to. Just one parent’s consent is enough to waive a minor child’s mental health privilege. If a child is over 12 years

old, a parent usually tells them that they must sign the consent, and the child rou- tinely complies. Many court-appointed experts begin their investigation, asking for consents to be signed by all. Lawyers, anticipating the statutory bar, add careful language to court orders, either claiming that counseling has not been ordered by the court to circumvent paragraph (a) of §607.6, or alternatively, that the parties knowing and voluntarily waive part (d) of §607.6, for both them- selves and their children of all ages, so that mental health information can be accessed and reported to the court. One Rule 23 case has been decided regarding §607.6 since its enactment, In re Marriage of Noyes , 2018 IL App (2d) 170667-U, as well as several trial level cases. All have held to strict adherence to §607.6(d), in that “all counseling sessions shall be confidential” and that information gleaned from counseling “shall not be used in litigation” even in circumstances where consents were signed. GALs and evalua- tors appointed under 750 ILCS 5/604.10 cannot use a parent or child’s mental health information in any report to the court. Therapeutic Purpose of §607.6 Stop for a moment to think about why an individual is in therapy with a mental health professional. Therapy sessions should be a safe, confidential environment so individuals can speak frankly about emotions, fears, and actions. They need to be able to address the root of what is caus- ing emotional issues, and work with the therapist to address and modify behavior. Therapy has a goal: to get a patient to a better place with respect to their mental health and improve that person’s interac- tion with those around them. We are no longer in the era when our clients see a “shrink;” we urge our family law clients

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