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In our divorce or child custody case, can our marriage counselor be subpoenaed and forced to testify against me? Is what I tell our marriage counselor confidential in Illinois?
Generally, your spouse or his or her lawyer can have a subpoena issued, requiring witnesses to appear in court, to produce written notes and records, and to testify in your divorce or child custody case. The procedure is simple, and the goal in all cases is generally full disclosure of all relevant facts. Therefore, subpoenas in divorce or child custody cases are routinely and easily issued to those people your spouse's lawyer selects.
On the other hand, a marriage counselor generally falls under the definition of a "therapist" as stated in The Illinois Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA). The requirements for subpoenaing a "therapist," including a marriage counselor, are not routine and are anything but simple. In fact, many lawyers—even divorce lawyers—are unaware that a subpoena to a "therapist" or "marriage counselor" must follow strict rules set for in the MHDDCA.
The strict rules for serving a subpoena to a marriage counselor or therapist require the following:
A hearing must be conducted by a divorce or child custody case judge to determine whether to issue a subpoena, or the person whose records are sought has signed a written consent.
There must be a written notice and motion in advance requesting the court to issue a subpoena served to the counselor and the other party.
Each subpoena issued by the court must contain the following warning: "No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought." See 740 ILCS 110/10.
A judge should not issue a subpoena to a marriage counselor—who is a therapist under the MHDDCA—to appear and testify in a divorce or custody trial unless both parties consent in writing, as required by the MHDDCA.
Additionally, your marriage counselor cannot testify in court, even if under a subpoena issued by the court to testify. The Illinois Mental Health and Developmental Disabilities Confidentiality Act, or MHDDCA, provides that a "therapist" cannot reveal your confidential statements to anyone, including the court, even in an Illinois divorce or child custody case.
In Illinois, the "therapist-patient privilege"cannot be overcome by a court subpoena. But, like anything else, there are some exceptions to this rule. For more information, please see "7 Basic Principles of Marriage Counseling in Illinois: Parts 1, 2, 3, and 4."
Going through a divorce can be complicated and overwhelming. However, you do not have to go through it alone. The compassionate DuPage County divorce lawyers at the Law Office of Martoccio & Martoccio are available to help you and will look out for your best interests. Call us today at 630-920-8855 to schedule your free, confidential consultation.<< Read Part 4 of the Series