Will the therapist play a role in the case? Do I want them to play a role? How can they play a role?
Child custody disputes often involve children who are under the care of a mental health professional. It is important to note and be aware that your child’s mental health treatment is privileged and protected under HIPPA. It is a violation for anyone to blindly subpoena or access that information without the appropriate steps taken.
In many cases, a lawyer is appointed for the child to make determinations for that child. A child is incapable of making the determination of waiving the privilege. Therefore, the Court appoints a lawyer. In Maryland, two types of lawyers could be appointed. The first is called a Nagle v. Hooks attorney. The second is called a Best Interest Attorney.
A Nagle v. Hooks attorney is appointed by the Court and has a limited role. This attorney only makes the determination as to whether or not to assert or wive privilege. If the attorney asserts the privilege, then the protections of HIPPA remain and the attorneys may not use or contact the therapist in the litigation. Conversely, if the privilege is waived, then subpoenas may be issued, therapists can be contacted, etc. Once the decision is made, this attorney is done with the case.
A Best Interest Attorney has the same powers as the Nagle v. Hooks attorney except the Best Interest role is expanded. The Best Interest Attorney argues in the case on behalf of the child, is part of the process, and appears at all court appearances.
The process of selecting the correct attorney for your case with a child therapist requires skill and experience. It is imperative the correct attorney is selected as the testimony of a mental health professional can make or break a case. It’s simply that important!
If you need help in a child custody case, call the office at 443-709-9999 and I’d be happy to discuss further.