Parents and judges often prove reluctant to use testimony from children in divorce and other actions involving custody determinations, even though children frequently possess critical knowledge of parental behavior material to those determinations. Without a child’s testimony, hearsay rules limit a parent’s ability to proffer the child’s relevant knowledge. Parties normally work around those limitations through expert witnesses who can rely on hearsay in forming their opinions. Expert testimony in custody cases typically comes from a child’s court-appointed guardian ad litem or from a medical/mental health professional who has seen the child in a professional capacity. Even that testimony may have pitfalls though, one of which occurs when an expert is asked for information obtained through treatment of a child by a mental health professional. As this article discusses, Georgia has established a mental health privilege which applies to children too, although some questions persist as to who can raise and waive a child’s mental health privilege.

Georgia law precludes from evidence, on grounds of public policy, a patient’s communications with a treating psychiatrist, psychologist, or other mental health professional.(1) This statutorily-recognized protection of confidential communications in psychotherapy has been referred to alternatively as the “psychologist-patient privilege,” the “psychiatrist-patient privilege,” the “psychotherapist privilege,” or the “mental health privilege.”(2) The law deems confidentiality as the sine qua non for successful psychotherapeutic treatment, since a psychotherapist’s ability to help a patient completely depends on the patient’s willingness and ability to talk freely, and assurances of confidentiality and privilege foster the psychotherapist’s ability to function.(3) The mental health privilege applies when mental health treatment was given or contemplated but does not apply to court-ordered mental health evaluations performed by professionals.(4) The privilege protects psychotherapist-patient communications themselves and to all information having as its origin communications between patients and their mental health providers.(5)

Critically – for purposes of this article at least – the mental health privilege applies to psychotherapy provided to minor children as well as adults.(6) When the privilege involves a child’s therapy, however, questions arise as to who can raise and waive the child’s privilege.

It appears that a parent having at least joint legal custody of a child can raise the child’s mental health privilege in a custody action.(7) Likewise, a mental health professional who treated a child has standing to assert the privilege if called to reveal privileged information in a lawsuit.(8) That is not to say a psychotherapist can refuse to testify if properly subpoenaed for deposition, trial, or other hearing. To this author’s knowledge, unless the subpoenaed therapist has obtained a protective order or order quashing the subpoena, the therapist must appear and testify to non-privileged matters within the therapist’s knowledge.

As for waiver, the Georgia Supreme Court has framed the mental health privilege as nearly absolute, stating that “the privilege is held only by the patient and waiver of the privilege must be expressly made by the patient, or, in the absence of an express waiver by the patient, ‘one seeking the disclosure of privileged mental-health records must establish a waiver by the patient's ‘decisive unequivocal conduct reasonably inferring the intent to waive [.]’”(9) This waiver rule seems clear in theory, yet its application to child patients has proven murkier in practice.

The main confusion regarding waiver of a child’s mental health privilege involves attempted waivers by guardians ad litem and parents. As to the former, in one custody case, the Georgia Supreme Court held that a guardian ad litem could be appointed to determine whether the minor children wished to invoke their mental health privilege.(10) While that holding seemingly can be interpretated to preclude waiver of a child’s mental health privilege without the child’s consent, additional appellate language leaves the issue unsettled. The Supreme Court itself followed its foregoing advisement with a direction to the lower court to “also determine whether either child is in need of a guardian ad litem to decide whether the child should invoke the mental health privilege.”(11) A trial judge might interpret the latter direction as permitting a guardian ad litem to waive a child’s mental health privilege in the child’s best interests, irrespective of whether the child has in fact agreed to waive the privilege. In the absence of a clear direction from an appellate court, it seems likely that some judges believe guardians can waive the mental health privilege even when a child does not know the privilege exists and does not know that confidences disclosed to a therapist may later be revealed in court.

Similar confusion exists with respect to parental waivers of a child’s mental health privilege. The Georgia Supreme Court has confirmed that no representative, including a parent, can waive the mental health privilege of a deceased child.(12) The Court based that holding on the public policy considerations for the mental health privilege and on the principles that a) confidential communications between a mental health professional and patient may not be disclosed absent waiver by the patient, and b) the mental health privilege survives the death of the patient.(13) Although the child in that particular case happened to be an adult at the time of his death, the Supreme Court’s analysis and ruling did not distinguish between adult children and minors. Because the Court instead emphasized the public policy considerations for the mental health privilege and the inviolate nature of the privilege, its analysis seemingly justifies an extension of the holding to living minor children who have confidential communications with a mental health professional. But the Court did not expressly extend its holding in that fashion, and no appellate court to date has yet explicitly precluded waiver of a living minor child’s mental health privilege by a parent or other representative.

(1) See O.C.G.A. § 24-5-501(5)-(8). (2) See, e.g., State v. Herendeen, 279 Ga. 323, 324-325, 613 S.E.2d 647 (2005). (3) Id, 279 Ga. at 325. (4) Id, 279 Ga. at 326; and Gottschalk v. Gottschalk, 311 Ga.App. 304, 314, 715 S.E.2d 715 (2011). (5) Id, 279 Ga. at 328; and Advantage Behavioral Health Sys. v. Cleveland, 350 Ga.App. 511, 524(4), 829 S.E.2d 763 (2019). (6) Id, 279 Ga. at 327-328. (7) See Herendeen, supra, 279 Ga. at 327. (8) Cleveland, supra, 350 Ga.App. at 518-519(3). (9) Cooksey v. Landry, 295 Ga. 430, 433(2), 761 S.E.2d 61 (2014), quoting Herendeen, supra, 279 Ga. at 327. (10) See Herendeen, supra, 279 Ga. at 327-328. (11) Id, 279 Ga. at 328. (12) Cooksey, supra, 295 Ga. at 433-434(2); O.C.G.A. § 31-33-4; and O.C.G.A. § 37-3-166(a)(8.1). See also Cleveland, supra, 350 Ga.App. at 520-521. (13) Cooksey, supra, 295 Ga. at 433-434(2).