A few years ago my husband and I started seeing a marriage and family therapist regarding ongoing issues we were having in our marriage. I had some sessions by myself and so did he. In the course of my private therapy sessions I confided to my therapist that I recently had a bit of a cocaine problem, which I have now dealt with. My husband does not know and my therapist told me that she would keep it between us. My husband and I have now decided to divorce and it is fairly contentious. We are still at the beginning stages of the process and we are fighting over custody of our children. In the initial paperwork my husband’s attorney has listed our marriage and family therapist as a witness. If they call her to testify will she be forced to divulge what I told her in confidence about my recent drug use? Will I lose custody of my children if she does?
Generally, in Nevada, the communications you have with a therapist in the course of treatment are confidential so long as you did not intend to disclose the information to a third party. The confidentiality extends to communications made within the context of marriage counseling, even if the communication is made in front of your spouse during a joint session.
As the client of the therapist, you can prevent the therapist from disclosing the confidential communications to anyone. Most therapists are well versed on the ethical rules that govern their profession and understand that they may not disclose details of therapy without authorization from the client. There are, however, exceptions to the rule. If you tell your therapist that you are about to commit a crime, those communications are not privileged and the therapist may disclose the information in order to prevent perpetration of the crime. This does not typically apply to past crimes. In the above scenario, even though use of cocaine is a crime, because the confidential communication was regarding past use, as opposed future use, the therapist would not be permitted to divulge the communication.
Another exception is that if the therapist is called to testify in a proceeding in involving the welfare of minor children, the therapist may divulge confidential communications related to protecting the welfare of the children. Arguably, this is the exception that would apply in the case above. Because of this exception, I do believe that your therapist might be required to answer honestly regarding her knowledge of your past drug use during child custody proceedings. The question would have to be a direct question in order to get around the client/therapist privilege. In other words, a broad question by your husband’s lawyer regarding what you told her during therapy would be met with a sustained objection regarding privilege. If, however, a specific question is asked regarding your drug problem, the therapist would likely be required to answer the question.
In my experience, if it is clear that your substance abuse is going to be an issue in the case it is better to admit this prior to trial rather than have the other side elicit the information from a witness on the witness stand. If you can admit you had a problem and show the Judge the steps you have taken towards rehabilitation, then the Judge is likely to give you the benefit of the doubt.
Whether your drug use will affect your custody rights really depends on the severity of your use, the length of your sobriety, and whether the Judge is concerned that it continues to be an issue in your life.
Jessica H. Anderson
Family Law Attorney Reno NV