Family Court

Guardians and the child’s therapist.

In virtually all contested family court cases involving children, a Guardian ad Litem is appointed. Should the child be in therapy it is a near certainty that the Guardian will want to speak with their therapist.  

The responsibilities of a private Guardian ad Litem in a custody matter are found at  SC Code 63-3-830.  The Guardian’s role is clearly stated to represent the child’s best interest as an independent advocate in the litigation.  

The Guardian in a private family court case plays a unique role in the litigation process:  they will often be an attorney and have authority to file motions when necessary, but are not counsel of record; the Guardian will speak on the child’s behalf, but does not represent the child in the litigation; the Guardian will provide sworn testimony to the court about the child’s best interests, but generally has no specialized training in child development and/or child and adolescent psychology.  

As a result many mental health workers are not sure what to do when contacted by a Guardian with a request to speak about their client. While most often the legal position of the therapist and Guardian are aligned, that, and the the existence of litigation, does not change the confidentiality requirement.  Unless there is a signed release, a court order, or a HIPPA compliant subpoena, confidentiality must be maintained. 

Most often a well written order appointing a Guardian will contain the necessary language permitting a release of documents and/or communication with the Guardian.  The order appointing the Guardian is in effect until the case is ended. This means that in a highly contested case a mental health worker whose client is the subject of the litigation can expect several, perhaps numerous, requests from the Guardian.

Always keep in mind that the rules of confidentiality don’t change because litigation has ensued and a Guardian and a mental health worker have aligned interests. If a Guardian is accused of being biased, as they commonly are by one side, and the confidentiality rules have not been followed, the child’s mental health worker will also be seen as being biased and this could adversely effect the child. 

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