Ethical Considerations for Custody Evaluators, Mediators, and Case Managers
Understanding the ethical code of your profession is a must. Functioning within the guidelines of an ethical code is what licensed professional practitioners do in their professional and personal lives. Being a professional person means also being an ethical person. There is no reason to belabor the various ethical codes, such as the American Counseling Association Ethical Code; being a professional counselor, you have already studied the codes applicable to you. Whatever mental health professions you belong to, you know and understand their codes of ethics. Furthermore, you practice within the codes that apply to you and make ethical decisions—and remember that many licenses require a continuing education course on ethics each year.
Working as a forensic counselor does not relieve you from also being an ethical counselor. However, some of your ethical considerations will be inherently different when working as an evaluator, mediator, or case manager. The code still guides your practice, but because of the public nature of legal cases, some things are different for a forensic counselor.
One of the cornerstones of any ethical code is confidentiality. Without confidentiality, no therapeutic relationship would exist. Counselors guard confidentiality in their practice. They explain what confidentiality means to their clients. They also explain under what circumstances they could be forced to break confidentiality. Much of the intake session is devoted to talking about confidentiality and the boundaries surrounding it. But for a custody evaluator, case manager, or mediator, the concept of confidentiality takes on a slightly different hue.
People who choose to put their issues in the hands of the legal system are also choosing to put their issues in the public arena. Legal cases are public, not confidential, though some aspects of a case may be ordered sealed from the public eye. Cases in the family law court are considered public information. Even the results of such cases are published in the local newspaper. Therefore, confidentiality is not an issue except in certain circumstances, such as when a judge so orders and within the sphere of attorney–client privilege. The work of the forensic counselor is not considered confidential—except for the work of mediators and work done during mediation. An evaluator does not have the responsibility to maintain confidentiality in his or her work for the courts. This concept is very hard to accept as a licensed professional counselor, but get used to it: Confidentiality is not an issue for an evaluator or a case manager.
That said, a good evaluator does not blatantly violate confidentiality. You must find a middle ground between guarding the confidentiality of your client and “telling all” about your case. As an evaluator, you have to make a paradigm shift when it comes to confidentiality. You have to find a place of peace that allows you to protect some degree of confidentiality while knowing that your work will ultimately become public knowledge. In other words, you must know when to talk and when to keep your mouth closed.
The parents and children in a custody evaluation case are not your therapeutic clients. They have been ordered to appear in your office and (in the case of the parents) to pay for the services you ultimately provide to the court. You hope to help the parents better understand their situation and make different choices in order to improve their child’s life both during and after the divorce, but the work that you do as an evaluator is the property of the legal system. It is not the property of the parents, the attorneys, or even the judge. Your work is the property of all these people because it is potentially the property of the public. Thus, your job is to accept that what you do as an evaluator is not confidential—and yet to not talk about your work to just anybody. This conflict can be a minefield for the evaluator: You try to maintain confidentiality, knowing that it may turn out to be impossible.
At the first sessions, be very clear to each parent about the lack of confidentiality in the evaluation process. In addition, tell each parent that you will try to maintain confidentiality throughout the process but emphasize that doing so might not be possible. The parents or child must understand that you are not going to abuse the lack of confidentiality—but that likewise you cannot protect confidentiality as you could if you had a therapeutic relationship with the parent or the child. Make sure that the parent clearly understands that what he or she says to you may well be brought up in a public forum, and that no assumption of confidentiality covers what is discussed. Many times the parent thinks that time spent with you is subject to the same parameters of confidentiality as time spent with an attorney or a therapist. It is not—this must be made crystal clear.
The parent also needs to understand at the first session that you will not keep secrets from the other parent. That does not mean that you will tell the other parent everything, but neither is it your job to side with one parent over the other; accordingly, you will not conceal information relevant to the evaluation process. Likewise, you will not be a party to untruths. You will tell the truth even when it is hard for a parent or child to hear. You will not sugarcoat the truth, and you will not conceal the truth when it needs to be told. One of the reasons the parents are getting a divorce is because they weren’t honest and straightforward with each other. You will not do that to either of them.