Therapy

As a human person, you have the right to make your own health-care choices, unless that right have been taken away from you due to your having been found to be incompetent to handle your own health-care decisions (e.g. detention for a mental health condition per Welfare and Institutions Code Sections 5150 et seq. and/or conservatorship per Probate Code Sections 1801 et seq.).

Nevertheless, in family court, judges often come to the conclusion that therapy would be a good idea for you, and they might order you to seek therapy to address certain issues “as well as any additional issues identified by the therapist,” with therapy to continue “until released by the therapist.” These orders are almost routine in many counties, but such orders generally exceed the judge’s authority.

That being said, if a judge make an order against you, expect it to be enforced until and unless you can get the judge to modify the order or until you can get the order reversed on appeal. This is what Leslie Matthews did 45 years ago, in 1980 [Marriage of Matthews, (1980) 101 Cal.App.3d 111]. The following comes from the written appellate opinion, which should serve to guide us (and judicial officers) on this issue.

“Leslie claims that the court lacked the authority to direct her to undergo therapy or counseling with Dr. Zimmerman for as long as he (the doctor) deemed necessary and that she ‘comply and cooperate in any way requested by Dr. Zimmerman.’ Leslie argues that there is no statutory or decisional law which authorizes a court to impose any such requirement upon a party to a dissolution proceeding. She concedes that subdivision (a) of section 2032 of the Code of Civil Procedure permits the court to order a mental examination by a physician where a party’s mental condition is in controversy. She admits that such procedure might be appropriate in a dissolution action where a party’s right to have custody of a child is in issue. However, Leslie points out that, in this instance, she was not merely required to submit to a mental examination but was also required to undergo psychiatric therapy for an indefinite period of time. She contends that an order subjecting her to such involuntary psychiatric treatment is beyond the authority of the court and is in direct violation of her due process rights, since it constitutes a fundamental restriction of her liberty unaccompanied by any procedural safeguards.

“Again, Leslie’s position is sound. We find no precedent for such a provision as that contained in the order of December 1st. Leslie is a party to a dissolution action. There is nothing in this record to indicate that she is an individual who could be subjected to involuntary psychiatric treatment under the provisions of the Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5150.) It is apparent that the trial court in this case was of the opinion that Leslie would benefit from psychiatric therapy, in that it might help to decrease the animosity between Leslie and Mark and enable Leslie to deal in a more mature manner with the exercise of Mark’s visitation rights. Nevertheless, the court’s praiseworthy motives furnish no basis for requiring that Leslie undergo involuntary psychiatric therapy of an unspecified duration. Such a significant curtailment of Leslie’s liberty would, at least, require legislative authorization. Undoubtedly, if such legislation were enacted, it would provide for procedural safeguards which were not here accorded to her.”
— Matthews at 117-118

In this particular appellate opinion, “therapy” and “counseling” are used interchangeably (or nearly so) to mean “psychiatric treatment.” The legal distinction did not come until years later.

As pointed out in the appellate opinion, at that time (1980), the legislative authority under which judicial officers might direct a party to engage the services of a mental health professional was extremely narrow, being limited, e.g., to a mental evaluation per Code of Civil Procedure 2032(a), if the mental status of the party were brought into question by that party’s actions.

The law as interpreted in Matthews was confirmed in Camacho v. Camacho, (1985) 173 Cal.App.3d 214, 221-222, wherein it was decided that “the portions of the judgment which condition appellant’s right of visitation on his timely payment of child support and undergoing therapy are reversed.”

Counseling

In response to the foregoing appellate opinions limiting the authority of family courts, in September of 1989, the legislature passed Civil Code Section 4608.1 (effective January 1, 1990), giving family courts limited authority to order “counseling.” The statute was favorably cited in In re Sarah M., (1991) 285 Cal.App.3d 1486, 1504. With the adoption of the Family Code in 1994, Civil Code Section 4608.1 became Family Code Section 3190 (per Family Code Section 2), which along with related statutes (Family Code Sections 3190 et seq.) remains in effect to date, never having been constitutionally challenged.

Family Code Sections 3190 et seq. permit the family court to order a party or child into “counseling” with a licensed mental health professional or community program for up to one year with the “counseling” to have a specified duration, frequency, scope and purpose. The “counseling” CANNOT be open-ended as to duration (“until released by the counselor”) nor as to purpose (“any additional issues identified by the therapist”).

The family court must make specific findings:

• That disputes related to a child pose substantial danger to that child’s best interests (potentially, but not necessarily being related to history of domestic abuse within the past five years);
• That the financial burden of counseling will not jeopardize a party’s other financial obligations.

“Counseling” is NOT intended for the benefit of the person ordered to receive it (although the party might indeed realize benefit). Counseling is to fulfill a statutory purpose (in the case of Family Code Sections 3190 et seq., the purpose is to protect a child’s best interests from the dangers of parent-parent or parent-child disputes).

Another statutory basis for counseling is to protect a victim from domestic abuse, e.g. pursuant to Family Code Section 6343. This statute permits the family court to order an abuser into a batterer’s program as defined in Penal Code Section 1203.097 (normally 52 weeks). Again, this counseling is NOT for the benefit of the abuser, but rather, the abused. The abuser might benefit, but the abuser is NOT the intended beneficiary.

Thus, the main difference between “counseling” and “therapy” is the intended beneficiary. “Therapy” is for the personal benefit of the person receiving the “therapy.” As such, it is a personal constitutionally protected health-care decision that is generally outside the family court’s jurisdiction to order. “Counseling” is to fulfill a statutory purpose and is usually for the benefit of a person OTHER than the person receiving it (although that other person might also participate in the counseling in some way, e.g. in conjoint counseling).

Although this legal distinction is an important one, it is not well-understood– not by many family law practitioners or even experienced judges. To this day, judges routinely adopt recommendations to make therapy orders, and those orders go unchallenged, because many attorneys don’t know to make the challenge. Mental health professionals often use the terms, “therapist” and “counselor” interchangeably, because they don’t know the legal distinction (or its history) either. Because of that, mental health professionals often stray outside the strict parameters of counseling order made by judges, even when those orders be properly framed.

Other Legal Distinctions

Because “counseling” is not necessarily intended for the benefit of the person ordered into it (but rather for a statutory purpose), that party is not a “patient” per Evidence Code Section 1011, because that person is not one who

“consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his [or other gender] mental or emotional condition or who submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.”
— [bold italics added]

Because the person is not a “patient,” there is no psychotherapist-patient confidentiality per Evidence Code Section 1014. This concept is also not broadly well-understood, and counselors will often defy subpoenas and refuse to testify claiming “privilege” and “confidentiality.” Many family law practitioners, and even experienced family court judges will mistakenly believe that such “confidentiality” exists.

To overcome these misunderstandings of the law, your attorney needs to be prepared with clear written analysis (a brief) to explain the important distinctions between “counseling” and “therapy.” It is helpful if your attorney be familiar with the history of how the current laws regarding “counseling” came into being, and the purpose they serve. Even then, you may find yourself in a situation where appeal be the only option, as was the case 45 years ago for Leslie Matthews, who had to go to the Court of Appeals to defend her constitutional rights.