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Up until 1983, parents everywhere we’re taking their children to see psychiatrists, social workers, psychologists and other mental health professionals.  When parents took their children to see those professionals, they expected to know what, if any, problems the children were suffering and what, if any, steps those professionals were taking to address the problems.

Some of those parents have no doubt, been through a divorce. Other such parents were in the midst of a divorce or custody case. Many, many are intact families as well.  Yet in each case or circumstances the parents took their children to professionals expecting results and expected to know details of their child’s state of mind.

The parents want to talk to those professionals about what is on the child’s mind, what the child was saying, what they should say to the child, and what solutions were being proposed etc.  Sometimes, that information would be helpful to judges in deciding custody cases and visitation issues.  Then all that changed in 1983.

Adults know that when they meet with a psychiatrist or other mental health care professional, they are entitled to privilege. This privilege is sometimes referred to in the alternative as the “doctor patient” privilege or “doctor patient confidentiality.”   It is codified in the Maryland Courts and Judicial Proceedings Article, Chapter 9.

While it has long been the case that adults enjoy that privilege, the Maryland courts in 1983 determined that children have the same privilege and that neither, nor even both, of the parents may decide to waive or invoke that privilege.  In 1983 Maryland’s highest court, the Maryland Court of Appeals decided the case of NAGLE v. HOOKS  296 Md. 123, 460 A.2d 49 (1983)

That ruling has subsequently caused significant problems for divorcing and single parents who are subject to custody cases and custody orders.  The court in Nagle v. Hooks, held “(W)hen a minor is too young to personally exercise the privilege of nondisclosure, the court must appoint a guardian to act, guided by what is in the best interest of the child (and) the parents, jointly or severally, may neither agree nor refuse to waive the privilege on the child’s behalf.”

The way it works is as follows:

One or both parents identify a problem or potential problem with the child. They take the child to see a specialist or other professional . If the parents want to know anything specific about the problems or a therapeutic resolution of those problems they are not permitted to have direct contact with the therapist.

Before that therapist can share his/her findings or opinion on the child’s welfare, the court must first appoint an attorney to act as a sort of guardian and decide whether waiver of the privilege is in the child’s best interest.  As often as not, the best interest attorney won’t permit that testimony.

Now, I am not a mental health care professional, nor do I know specifically about their guidelines.  Nevertheless, I would tend to believe that when a parent or parents with an intact family take their child to a therapist they are able to freely discuss any problems the child has and set out strategies to cope with those problems.

It’s sadly idiomatic that the children from fractured family are almost universally recognized to be at greater risk promotional problems.

Yet access to information which might be in their best interest is conducted “by committee” and sometimes won’t be divulged or disclosed at all.  In such cases, the parents cannot have unfiltered contact with the therapist.

This can create and perpetuate an atmosphere of dysfunction.  A result that can have tragic consequences.  This problem is even more profound when you consider that the children most often at risk for problems are the ones from fractured households embroiled in legal proceedings.

Politicians on all sides have lamented that “child rearing is the job of parents and not of society”  This makes it difficult to reconcile a situation where the parents can BOTH be usurped by a court appointed lawyer as a matter of law.

Tim Conlon, Esquire for The Custody Place


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