Changes to Child Mental Health Laws and the Potential Impact on Child Custody Cases

By: Sarah T. McCain

In the past several years there has been a renewed focus on mental health care and those going through divorces or custody cases are not immune to those issues. It is incredibly common for a parent to seek the assistance of a therapist to discuss these often complicated emotional issues. Children are not immune to emotional or mental health issues either, especially when their parents are in the midst of high conflict cases. If raised to a court that a child is struggling, it would not be unheard of for a professional involved with the case, such as a Child and Family Investigator, or the court itself, to suggest that a child be involved some sort of therapy to deal with the divorce related issues. Therapy is generally seen as beneficial for children going through a divorce so that they have a third person outlet to talk to. Until recently, parents were really in charge of the mental health process in terms of counseling, communication with counselors, access to information, etc. for children under the age of 16. Additionally, children over 16 had their own rights as related to therapy and confidentiality. This has now changed.

With the rise of mental health issues among children of younger and younger ages and the rise of suicide as the leading cause of death for Colorado youth ages ten through fourteen, Colorado has taken measures to ensure that children have every opportunity to access mental health assistance.

In May of 2019, a new law was put into place which created new avenues for access to mental health care for younger children. Specifically, Colorado Revised Statutes provides that a “mental health professional may prescribe psychotherapy services to a minor who is twelve years of age or older, with or without consent of the minor’s parent or legal guardian, if the mental health professional determines that: (a) The minor child is knowingly and voluntarily seeking such services; and (b) The provision of psychotherapy services is clinically indicated and necessary to the minor’s well-being.” In a nut shell, now a child as young as 12 may seek out their own therapeutic care. While this is great news for kids in terms of their access to care, it may create complications in child custody cases when mental health of a child or the statements they are making to the child’s therapist become relevant in the court case.

High conflict child custody cases often involve parents looking for an expert to testify as to what is in a child’s best interest as relates to the allocation of parental responsibilities and the division of parenting time (please review other some of our other blog posts regarding the hiring of Child and Family Investigators or Parental Responsibility Evaluators to investigate and provide opinions in a case). Others will look to their child’s therapist to provide insight regarding how a child is handling the divorce or residential changes, their wishes and concerns, and how they are progressing from an emotional standpoint, with the hope of obtaining information to help guide the court’s ruling. This can be a less expensive and less time consuming proposition than the thousands of dollars to be spent on a CFI or PRE. However, this new 2019 statutory change may complicate the parent’s ability to rely on the therapist’s guidance in this avenue. The rule also provides, “The mental health professional may notify the minor’s parent or legal guardian of the psychotherapy services given or needed, with the minor’s consent, or with the consent of the individual who a court has ordered holds the minor’s therapeutic privilege, unless notifying the parent or legal guardian would be inappropriate or detrimental to the minor’s care.” This provision may create a significant hurdle for obtaining evidence because without the minor child’s consent (ages 12 and above), the therapist may be limited in what testimony or information they can give, if any. While the mental health professional should engage with the minor child to discuss notifying parents of progress, without this consent, this information is privileged information and cannot be used.

There are exceptions to this rule if the mental health professional believes that the minor child is unable to manage their own care or treatment, there is a clear and imminent intent or threat to inflict serious bodily harm to themselves or others, or there is a clear intent to commit suicide. In those cases, the mental health professional would need to follow the appropriate notification provisions. Ultimately, therapy for children is therapy, nothing more. When a child’s therapy or mental health concerns are part of a divorce or child custody case, they can have an income on the outcome.