Posted by Nydia Streets of Streets Law in Florida Child Custody

When a child is seeing a therapist and a Florida child custody case is pending, a question arises as to whether or not the therapist can be compelled to testify regarding the child’s statements to the therapist. In the case Garcia v. Guiles, 1D17-5125 (Fla. 1st DCA 2018), an order allowing the a child’s treating psychotherapist was appealed, and the appellate court discussed the standard for reviewing whether or not the order was appropriate.

In this case, the father filed a petition for modification of the parties’ parenting plan requesting majority time-sharing with the parties’ child. He alleged essentially that the mother was unstable, having moved the child numerous times since the entry of the parties’ final judgment in 2010. At trial, a mutually-appointed expert testified the parties’ child would be better served living primarily with the father, but that it was difficult to make recommendations because both parents appeared to care for the child deeply.

In an effort to rebut the expert’s testimony, the mother sought to introduce the testimony of the child’s treating psychotherapist. Not wanting to postpone the trial, the court ordered that a guardian ad litem be appointed to determine whether or not it was in the child’s best interest to waive the patient-psychotherapist privilege. Ultimately, after one day of consideration the guardian ad litem recommended that the privilege be waived and the father’s petition for modification was subsequently denied.

On appeal, the father argued in pertinent part that it was error to waive the privilege and that his due process rights were violated by the appointment of the guardian ad litem. In denying the father’s appeal, the appellate court held, “[W]e conclude that the court—having considered the opinion of the child's guardian ad litem that waiving the privilege was in the child's best interest—did not err in allowing the psychotherapist to testify.”

Further, the appellate court held, “We further conclude that the court did not violate Garcia's due process rights when it appointed a guardian ad litem. [. . .] The thrust of Garcia's argument is that the court pressured the guardian to make a decision without affording her time to fully consider the issue. He argues in his brief that "the trial court strongly implied that [it] was not willing to consider a continuance of the trial to have a proper evidentiary hearing on the question presented." However, no one ever moved for a continuance. After the guardian ad litem was retained, Garcia's attorney stated that—without waiving her objection to the court's decision to appoint a guardian ad litem in the first place—she did not object to the selection of that particular person. She then explained the time constraints the guardian ad litem faced, but still did not move for a continuance. More to the point, the issue of whether Garcia had sufficient notice and an opportunity to be heard about the guardian ad litem is separate and distinct from the issue of whether the guardian ad litem (once appointed) had sufficient time to make an informed decision. We conclude Garcia has not shown any due process violation.”

Having a child’s therapist testify is an important and sensitive measure that should not be taken without the assistance of counsel. Schedule a consultation with a Miami child custody lawyer to go over your best defenses and claims.