In Illinois, the Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA), protects communications made between a client and a therapist. Generally, when an individual begins therapy, the therapist’s first obligation is to explain that anything the client says to the therapist will remain confidential. However, this may not always be the case for children whose parents are simultaneously involved in a custody battle, and where a Guardian ad Litem (GAL) has been appointed to investigate and recommend to the court what is in the best interest of the minor child.
In 2017, the Illinois legislature added section 607.6 to the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Given how recently section 607.6 was added, there is not much case law interpreting its provisions. Under this section of the statute, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties. Perhaps the more controversial portion of 607.6 can be found in subsection (d). Section 607.6(d) 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.”
While the legislative purpose of section 607.6(d) aligns with the purpose MHDDCA, it also conflicts with the GAL’s role. In a dispute over parenting time or decision making, the GAL’s role is to investigate and give a report to the court regarding the children’s best interests. Statements a child makes in counseling might be extremely important to that investigation. In other words, while section 607.6 provides the court with the authority to order counseling, it restricts the ability of lawyers, and GALs in particular, to use those confidential communications made in counseling in litigation.
Since the inclusion of section 607.6 in the IMDMA, two interpretations of subsection (d) have emerged amongst lawyers and judges. The first interpretation is the plain language interpretation. Under this reading of the statute, it would suggest that the terms of section 607.6(d) are unambiguous and that a court should not impose exceptions into the law that are not clearly expressed in its terms. As such, under a plain language reading of the statute, a child’s counseling sessions are not accessible to a GAL nor are they admissible in court.
However, the plain language advocates might have an adversary in the Illinois Supreme Court. There are two Illinois Supreme Court authorities that possibly conflict with a plain reading of section 607.6, specifically, Supreme Court rule 907 and the court’s decision in In Re Marriage of Collingbourne. Supreme Court rule 907 specifically provides that when a court appoints a GAL, it should also enter an order allowing the GAL to access the child and all relevant documents. The language used in Supreme Court Rule 907 mirrors language that has been used in Illinois Supreme Court case precedent related to GALs. In In re Marriage of Collingbourne, the Illinois Supreme Court specifically held, “[w]hen determining the best interests of a child, the circuit court should hear any and all relevant evidence.”
This naturally prompts the question: Would a child’s therapy records be relevant to the determination of their best interest? Of course they would be. This is because a therapist is specifically trained to evoke a child’s true thoughts and feelings about a pending dispute over allocation of parental responsibilities and/or parenting time. Counseling sessions in which the child is expressing their feelings about their parents, which parent they prefer to live with, which parent they feel most comfortable with, and any struggles they may be having can be very helpful to not only a GAL but also the court.
The discussion of Illinois Supreme Court precedent is relevant to the discussion of section 607.6 because Illinois courts have held that the legislature cannot, through the enactment of a statute, allow for discovery of material that is prohibited by Supreme Court precedent. Is the opposite also true? In other words, can the legislature, via statute, prohibit the discovery of evidence that Supreme Court precedent or rules allow? Section 607.6 prohibits the disclosure of evidence that Supreme Court rule 907 and the Collingbourne case allow a GAL to rely on. An argument can be made that Supreme Court rule 907 and the Court’s decision in Collingbourne overrule the statute, rendering its provisions legally unenforceable.
So, what does this mean for the parents and children in a parenting dispute? It means that depending on your judges’ interpretation of section 607.6(d) and the Illinois Supreme Court precedent, your child’s communications in therapy may or may not remain truly confidential and it is important to discuss these issues with your attorney.