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Legal and Ethical Concerns
Resources
• Attributes and Evaluation of Discussion Contributions.
• Professional Communications and Writing Guide.
What are the ethical and legal concerns in working with children? In your initial post for this discussion, include considerations of both divorce and custody issues as well as the roles that therapists may be asked to take.
Readings
Use your Gil text to complete the following:
• Read Chapter 7, “A Hero’s Journey: A Boy Who Lost His Parents and Found Himself,” pages 117–148. Using a complicated case involving divorce, abandonment, foster care, abuse, and neglect, this chapter illustrates the impact of these issues on development of self.
Use the Capella University Library to complete the following:
• Read Ablow, Measelle, Cowan, and Cowan, 2009, “Linking Marital Conflict and Children’s Adjustment: The Role of Young Children’s Perceptions,” from Journal of Family Psychology, volume 23, issue 4, pages 485–499. This article reviews issues of marital conflict and their impact on children.
• Read Kenny, 2000, “Working with Children of Divorce and Their Families,” from Psychotherapy: Theory, Research, Practice, Training, volume 37, issue 3, pages 228–239. This article adds to our understanding of all aspects of this issue, including confidentiality.

Children, Divorce, and the Law
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Play Therapy Resource Portal
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Child Case Study Backgrounds
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Multimedia
• Click Launch Presentation to listen to Children, Divorce, and the Law, an interview with an attorney who works with parents in the midst of divorce. The interview focuses on the effects of the divorce on the children involved.
• Click Launch Presentation to access Play Therapy Resource Portal.
• Click Launch Presentation to access Child Case Study Backgrounds.
Name Jared
Gender Male
Age 4
Heritage African American-Scottish
Spirituality Baptist, practicing
Presenting Symptoms Hitting and cussing in pre-kindergarten
Strength Areas Loves rap music, loves to dance to rap music, very close to his mother’s younger sister; relationship strong and positive, Sorita and mother are doing well in school
Developmental Moderately delayed in several developmental areas: social skills, awareness of feelings, slightly lagging in large and fine motor skills
Diagnosis NA
Family of Origin —-
Mother Malita
Father Not present, not involved
Caregivers Living with mother and grandmother
Siblings None
School Public pre-kindergarten
Socio-economic Status Making efforts to transitioning to working class
Interests / Hobbies Loves to dance and sing
Pets None
Other Jared hits and cusses at pre-kindergarten. He presents as a very angry little boy. He has never met his father and he and his mother have lived with his grandmother and his mother’s younger sister, Sorita (who is 15) all of his life. His mother Malita has recently graduated from a community college and is in training to become a registered nurse. His grandmother has cared for him with his aunt, while his mother has worked and attended college since his birth.

Jared’s mother is working and attending school and reports that she feels terrible about not spending enough time with Jared. Jared spends a lot of time with Sorita, who is an, highly motivated student, like her older sister Sorita enjoys her time caring for Jared although she wishes she had more time to go out and see her friends. Jared’s grandmother reports that she regrets her daughters did not have relationships with their fathers, and she thinks that this is the root of Jared’s problems. She Grandmother has sought some help from their church minister, who has suggested that he spend time with a male mentor from their congregation. The grandmother is experiencing some chronic physical problems that sap her energy.

Grandmother also reports that men have not been present in the family going back as far as she can recall. She feels both angry and helpless about this history. She herself reports that her own mother was an alcoholic and that in spite of this history, She has improved her life from that of her siblings (three brothers and two sisters), whom she has little or no contact. Two of her brothers have been imprisoned, and the third died in gang violence as a teenager.

Mother, Auntie, Grandmother

UPDATE:
Jared is now seven years old and has been doing pretty well in second grade. He continues to live with his grandmother, mother, aunt, and now an uncle who was released from prison about four months ago. His mother is working as a nurse locally and his aunt is now attending a community college and is less able to care for him. His uncle has been taking over and helping as he can. The grandmother’s health is beginning to decline and she also finds caring for Jared difficult. Through the school, Jared was diagnosed with learning disabilities. He is doing better now that he is getting special help, though he remains in a regular classroom. About two months ago, a friend of the uncle was staying with the family and Jared’s behavior changed very quickly. He tried to drown a neighbor’s cat, started a fire in the yard, and approached a toddler boy, the child of a neighbor, sexually. His aunt insisted that they take him to the advocacy center where it was determined that he was sexually abused (fondled) by the friend of the uncle. This man quickly left the home and state. Jared has now been brought in for treatment.
Books
Gil, E. (2010). Working with children to heal interpersonal trauma: The power of play. New York, NY: The Guilford Press. ISBN: 9781606238929.
Halstead, R. W., Pehrsson, D., & Mullen, J. A. (2011). Counseling children: A core issues approach. Alexandria, VA: American Counseling Association. ISBN: 9781556202834.
Children, Divorce, and the Law
________________________________________
Dr. Hilda Glazer:
Carol, welcome to Capella’s course 5252, Applications and Play Therapy. As you know this course is for counselors and therapists; focuses on the ways in which play therapy may be used as an intervention in a variety of special situation.
In this unit we have been working on the special difficulties that children may experience when their parents divorce. As an attorney, often handling divorce cases, you have experienced in these situations.
Carol Fey:
Yes, I do. My legal practice focuses on divorce and dissolution, both in a traditional sense and also involving unmarried couples who parent together. Unfortunately, as we both know in our separate practices, too often when adults have some difficulties in their relationships with each other, their children become dramatically impacted by that dispute.
Sometimes parents try to have their children take sides in the adult disagreement or in a custody determination. They may try to, for lack of a better description to win the approval of their children, if you will. Children can often end up feeling very much a part of the dispute; they may even feel as if they are the actual cause of the controversy between the adults. Of course, that is seldom the actual situation and it is not the way that parents even usually, rationally want them to feel, but it often happens in cases of divorces and other adult breakups.
Dr. Hilda Glazer:
It is really not unusual for a child therapist, as an advocate for the child to be called to testify in a custody hearing. A therapist, what kinds of issues can be asked about and what are the limits of what we can testify to in a general sort of way?
Carol Fey:
Well, that is a really complicated question and I will probably end up talking for a little while here, so let me see if I can go with this in piecemeal. Let me start by saying this, you have said, it is not unusual for a child therapist as an advocate for the child to be called to testify.
However, it is helpful to realize that the role of a person who testifies in court is not to act as an advocate for one side or the other, but rather to bring facts and sometimes informed opinions to the attention of the judge or the trial effect, who is making the ultimate decision. So you are really not there as an advocate when you are there as a therapist witness, you are there to provide certain kinds of information.
The evidence gathered in a trial or a hearing related to child custody has to meet certain criteria described in the courts Rule of Evidence; that is a very broad topic. For purposes of this discussion, the most important part is to know that there two kinds of witnesses.
One kind is a Lay Witness and the other kind is an Expert Witness.
Now, those terms are Terms of Art, just because a therapist may in some cases only testify as a lay witness, it does not mean that the therapist is not an expert in that field, these are definitions to be aware of simply for purposes of court.
As a therapist if you are called as a witness, you can basically provide two kinds of information.
The first is factual information and the second is opinion.
A child’s personal therapist who has been involved with the child for the child’s personal benefit could legitimately be called as a witness to provide facts about the therapy, and these are basically in the category of a lay witness. We are not looking at complicated experiments; we are not looking at complicated testing. We are looking at what has happened in the course of the relationship of play therapy.
And by facts, I mean things that you as a therapist can document. For example, when did the child first come into therapy with you? Who made the initial appointment? How many visits has the child had with you? About how long is each visit? Who has participated in the session, has it always been the same parent or have both parents participated? Have they participated separately or together?
Has the therapist have a session that involved either or both parents? If so how has the child reacted to one or the other parent, when both are in your presence? When they are all together, how does the child react? When the child is with one parent, how does the child react, if it is different? Are you aware of any differences in the child’s appearance, when the child collides with one parent as opposed to the other parent? Is the child’s demeanor any different when the child arrives with one parent, versus the other parent, that kind of information?
Those are the things that can appear in your notes and probably you do record in your notes and are things that we cannot know as in the courtroom setting unless you bring them to our attention from your own information. So it is information that is potentially helpful to a trial effect. But is very limited, and you will know that none of that that I said suggest that you would testify as to whether one or the other parent should have custody.
So, what have you been told are the reasons that the child is in therapy with you that would be helpful information. We would like to know why the child is in therapy, from your standpoint. Perhaps you could testify us to whether you have given either of the parents any advices to have assist the child with the issues that were raised. What advice that you have given, and do you happen to know, not just suspect, but know whether that parent has followed your advice.
And one more point to make while I cover this topic is that a therapist’s notes can also be subpoenaed in the court. So, I would suggest that every time when you develop your practice notes, every time you meet with a particular patient, you anticipate that you your notes might some day be viewed by someone else. I would suggest that a therapist limit note taking to what the therapist observes as opposed to more wide ranging thoughts.
You might know the follow up question to ask a parent later, but make sure that in your notes that these marked as just questions to consider.
It is really best to keep your records to the basic stacks of the actual play therapy relationship, the dates of service, who came, who participated and how, and a few observations, perhaps about whether the child seemed happy at the end of therapy, that in the beginning how the child reacted with each parent and so forth. I hope that is helpful.
Dr. Hilda Glazer:
Oh, very much, so thank you. And it reminds everybody how important the clinical notes are and that they can be subpoenaed, which means somebody else is going to read them. And the idea of making sure that they are factual, I think it is a good reminder to everybody.
So, at last I have seen those parents, I really cannot testify about them. I cannot testify on behalf of one parent against the other, if I have not seen both of them.
Carol Fey:
Well, I can actually make that even more expensive. I don not think that your role as a therapist is to testify for or against anyone, and it is really limited. Let us go back to thinking about what an expert witness is, as opposed to what a lay witness is. As I understand play therapy, basically you are there to assist a child getting their own personal response to a situation that the child is experiencing because of the conflict between their parents, at least for purposes of this discussion. So in that sense, your focus is on the child.
In order to qualify as an expert witness who would be giving testimony as to potentially who might be more prone to be in the child’s best interest as a custodian or what those limits would be, it would involve more than seeing the parents in a play therapy situation along with the child. It would involve forensic testing, it would involve extensive interviews.
And in fact, the courts do sometimes in contested custody matters, appoint a therapist, not a play therapist typically, but a therapist to especially trained in custody evaluations, who do complicated testing and interviews with each of the parents individually, who meet with the children as well, who do forensic testing on all of those things, and then write up reports based on that kind of information. And honestly that is far and beyond what the typical play therapist would have exposure to.
So, really in my opinion just to reemphasize, it is just not the role of a child’s therapist to testify for or against either parent. It is not really that therapist’s role to offer an opinion of all this to who should have custody, but therapist’s role is just way more narrow than that. And it is important to I think, to help the attorneys who try to involve therapists, really learn how limited that role is, not that it is not important to the child, but for purposes of court, how limited that information really is in making a custody evaluation.
Dr. Hilda Glazer:
So we have to remember that we are there for the child.
Carol Fey:
Absolutely. And you are there to help the child, not to be a witness. I mean, really, we all recognize, and I as an attorney recognizes that I would never have the complete information about a situation, I only have what I am exposed to and typically I am an advocate for one parent or the other. So, I do not see what happens when that person is in a different situation. You as a therapist would see the child in a therapy situation, but you do not see what happens in each of the homes and do the more comprehensive overall evaluations. So, really it is important to remember the limits of the information that we have.
And to not overstate them in an effort to help the child, when we rally not have that complicated information, but the more comprehensive information.
Dr. Hilda Glazer:
Okay. Let me just change the focus a bit. Since all of us may some day be called to be a witness, what advice can you give us about being a witness in a court proceeding?
Carol Fey:
That is a really important question, and honestly, the first thing I would advice a therapist to do when you are called as a witness and you will be some day. Attorneys do contact therapist, attorneys contact everybody they can come up with that might be helpful in terms of the testimonial they are presenting.
So the first thing I would do is to contact the attorney who is calling you as a witness, and offer to discuss why it is you are being called as a witness. I would strongly suggest that you emphasize how limited your role is for purposes of the hearing. But your focus is on assisting the child with the child’s feelings and reactions to the parents’ conflict, or whatever situation they have happened to be in. And if you must testify, then you would feel qualified to offer only limited kinds of information. For example, honestly, you could say what can best be said even in a letter.
Jamie came in for twelve visits, she has an ADHD condition that has been diagnosed by her pediatrician. She is experiencing some difficulty, because her peers make fun of her, she forgets her homework, she daydreams, she gets sidetracked in class. I have met with her mother as well; I provided some books on ADHD and suggested that she meet more frequently with Jamie’s teacher. I understand that she has been doing that, and that Jamie seems to be feeling better about her differences in terms of the reactions that I have experienced with her in therapy.
Now while the therapy — and I am getting off this now in terms of the actual advice, but more to help you look at it, while the therapy is designed to help the child, and that is your focus, but reality is that in this limited role of therapist, it is just not particularly useful in a court setting. That does not mean you would not be called to court as witness, because attorneys may not fully understand those limits. Helping an attorney to see just how little of the overall facts you can really provide, may help the attorney see that it would not be all that helpful to call you, and that will honestly save a lot of aggravation.
I do not know any therapist who enjoys going to trial to testify, and I know that at least in the therapist that I am in touch with, that seems to be one of the things they prefer to avoid. That is true for a variety of reasons; it is very impractical to schedule, it is very sort of heart-wrenching, and it can be difficult to experience. But the basic information or the basic reason why therapists tend to want to avoid participating in trials is that their focus is really narrowly on helping the child, and not in terms of trying to make overall life-changing decisions about custody.
Dr. Hilda Glazer:
Thank you very much for doing this with us and it was great talking to you.