Jenette M. Schwemler, PC

Don't Rely on the Counselor!

New law makes counseling sessions "off limits" in litigation

Filed in Child Custody, Divorce, on May 10, 2018

As of January 1, 2017, the Illinois Legislature took one of the most important resources away from divorce litigants and attorneys.  750 ILCS 5/607.6(d) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) provides:

 All counseling sessions shall be confidential.  The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.

Why is this an issue?  For over 20 years of practice, I, along with many other family law attorneys, have used and relied a counselor’s testimony in many divorce and custody disputes.  Often, as a lawyer representing a party, I would seek to have a counselor testify regarding a party’s mental health and/or mental status as it related to that party’s ability take care of the child(ren) or to hold employment.  As a guardian ad litem, I would rely upon a counselor to give me an educated and objective third party opinion as to what the child(ren)’s issues were and possible causes for behavioral problems or failing grades.  Many practitioners use counselors to get to the bottom of whether a party is “coaching” the child(ren) to say negative things about the opposing party.  With this statute, we can no longer use or rely on the counselor for these issues.

Any time a statute refers to the “best interests” of the child(ren), one of the factors in the analysis is the mental health of all parties involved.  Even when the term “best interests” is not used in the statute, there are specific references in the IMDMA statutes that require the court to consider the mental health of the parties or of other persons involved in the case.  Below are eight statutory examples of when mental health is specifically mentioned:

  1. Section 503(g) allows the court to protect and promote the best interests of the child(ren) by setting aside a portion of the marital assets in a separate fund or trust for the mental health of any minor child of the parties;
  2. Section 602.5(c)(3) requires when analyzing the best interests of the child(ren) in terms of allocating significant parental decision making responsibilities, the court consider the mental health of all individuals involved;
  3. Section 602.7(b)(7) requires when analyzing the best interests of the child(ren) in terms of allocating parenting time (formerly known as “visitation”), the court consider the mental health of all individuals involved;
  4. Section 603.10(a)(8) requires when analyzing whether a parent’s parental responsibilities or parenting time should be restricted, the court consider requiring a treatment program for perpetrators of abuse or for drug and/or alcohol abuse;
  5. Section 602.9(b)(4) assigns the burden of proof to a non-parent seeking visitation to establish that disallowing visitation will cause undue harm to the child(ren)’s mental or emotional health;
  6. Section 602.9(b)(5)(B) requires when analyzing whether to grant visitation with non-parents, the court consider the mental health of the child(ren);
  7. Section 602.9(b)(5)(C) requires when analyzing whether to grant visitation with non-parents, the court consider the mental health of all individuals involved;
  8. Section 610.5(a) disallows a motion to modify an order allocating parental decision making responsibilities within 2 years of entry unless, on the basis of affidavits, there is reason to believe the child(ren)’s present environment may seriously endanger the child(ren)’s mental or moral health or significantly impair the child(ren)’s emotional development.

It is difficult to imagine how to present a case where there are mental health issues involved without relying on or utilizing a counselor’s opinion or recommendation.  That expert opinion must rely on those communications in counseling.  The statute is so broad that it prohibits a counselor from providing an expert opinion in court if it is based upon communications during counseling.   Clearly, this statute does not further the objectives in determining what is in the best interest of children and determining whether a party has a valid reason for obtaining or keeping employment.

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