In family law proceedings, particularly those involving child custody disputes, courts frequently order parents and children to engage in mental health therapy. While the ostensible intent behind these orders is often to promote family well-being and mitigate emotional harm, these orders often suffer from significant procedural, evidentiary, ethical, and other defects[1] that can undermine both therapeutic efficacy and the rights of the family members.
Too often, therapy is ordered without a sufficient evidentiary basis demonstrating its necessity, the scientific validity of the specific therapy chosen, or clear guidelines for its termination. This practice can lead to unintended consequences, including unnecessary financial burdens, infringements on parental rights, and even potential psychological harm.
Insufficient Evidentiary Basis
One of the most troubling aspects of court-ordered therapy in divorce cases is the frequent lack of evidence demonstrating that therapy is necessary. In many cases, therapy is imposed based on vague allegations of emotional distress, parental conflict, or a judge’s subjective determination rather than clear, objective evidence of psychological harm. This practice contradicts fundamental legal principles requiring judicial decisions to be based on factual findings and substantiated evidence.
Courts often rely on the recommendations of guardians ad litem, custody evaluators, mental health professionals without requiring a rigorous objectively verifiable evidentiary showing that therapy is necessary or warranted. Consequently, judges often order therapy based on recommendations from professionals who may have biases, financial interests, or affiliations with controversial treatment methodologies.
Many court orders for therapy stem from allegations rather than proven facts. A parent might claim the other suffers from anger issues or parenting deficiencies, and without thorough evaluation, lazy and/or virtue-signaling courts may order therapy as a “precautionary measure.” This approach treats therapy as a harmless intervention rather than recognizing it as a significant imposition requiring justification.
Courts often erroneously apply a substantially lower evidentiary standard to therapy orders than is required for other court interventions; therapy orders frequently result from mere allegations or the recommendation of court-appointed evaluators whose assessments are often cursory, subjective, and biased.
In some instances, therapy is ordered simply because one party requests it, despite the absence of documented mental health concerns or expert testimony supporting the need for intervention. This practice can lead to an overreach of judicial authority, imposing significant obligations on parties without proper justification. Furthermore, the stigma associated with mandatory therapy can unfairly prejudice the court against the ordered party, potentially influencing future custody determinations and other legal outcomes.
Lack of Scientific Validity in Prescribed Treatments
When courts order therapy, they:
- rarely assess whether the specific therapeutic approach prescribed meets established standards of scientific validity.
- seldom distinguish between evidence-based modalities (like cognitive behavioral therapy) and less validated approaches. Orders often state simply that one must attend “therapy” or “counseling” without specifying the type of treatment or requiring it to meet scientific standards.
These oversights can lead, and often do lead, to ineffective or potentially harmful interventions.
The qualifications of providers are frequently overlooked as well. Court orders may not specify that therapy must be provided by licensed practitioners with appropriate expertise in the relevant issues, potentially exposing parents and children to unqualified or inappropriate treatment.
Absence of Clear Goals and Termination Criteria
Court orders for therapy frequently lack specific goals and termination criteria, potentially subjecting parents and children to indefinite “treatment” with no clear path to completion. This indeterminacy can create situations where therapy becomes punitive rather than rehabilitative, with parents and children unable to satisfy vague or shifting expectations. This lack of direction creates a system where therapy can become a tool of control rather than a means of progress and healing.
The absence of termination criteria also grants excessive discretion to therapists, who may become de facto judicial decision-makers determining when a parent has “successfully” completed treatment. This delegation of judicial authority raises serious due process concerns, particularly when therapists’ recommendations directly impact the fundamental rights of parents and children.
Without the court clearly defining 1) goals, 2) what constitutes attaining those goals, and 3) a structured evaluation process, court-ordered therapy can become a prolonged, intrusive, and financial burden rather than a targeted intervention designed to resolve specific issues as soon as possible.
Best Practices for Court-Ordered Therapy
To address these issues, courts should adopt more rigorous standards for ordering mental health therapy:
- First, consider alternative approaches to therapeutic intervention, such as educational parenting programs with clear curricula and completion criteria, or co-parenting coordination services that focus specifically on improving parental communication rather than attempting to “fix” perceived psychological issues.
- Require substantial, credible evidence demonstrating the necessity of therapy, ideally through comprehensive psychological evaluations based upon scientifically sound principles, conducted by qualified professionals;
- Specify evidence-based therapeutic approaches appropriate to the identified issues;
- Establish clear, measurable, reasonable goals for therapy and explicit criteria for its successful completion;
- Set reasonable time frames for therapeutic intervention with periodic judicial review; and
- Ensure therapeutic interventions are proportional to the issues identified and the least restrictive means to address legitimate concerns.
Conclusion
While mental health therapy can—and in some cases may—help family members (individually and collectively) resolve divorce and custody disputes and their adverse effects, its current implementation in family courts far too often falls short of basic standards for evidence, scientific validity, and procedural fairness. By adopting more rigorous standards for ordering therapy, courts can better balance the potential benefits of therapeutic intervention with the protection of parents’ and children’s rights and parental and child autonomy.
Divorce attorneys and litigants should be vigilant in challenging vague or unfounded therapy orders and advocating for a higher evidentiary threshold in such decisions. By doing so, they can help ensure that court-ordered therapy serves both a legal and truly beneficial purpose rather than becoming a tool for judicial overreach and unnecessary intervention in family life.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Constitutional and privacy concerns
Court-ordered therapy potentially infringes on constitutional rights to privacy and autonomy. These orders compel individuals to disclose intimate thoughts and experiences, often without clear limits on how this information may be used in legal proceedings. This raises significant concerns about self-incrimination and privacy rights that courts frequently overlook making blanket invocations of subserving “the best interest of the child.”
Financial burden
Court-ordered therapy places significant financial obligations on parents who may already be struggling with the costs of divorce proceedings. These therapies are rarely covered by insurance when court-ordered and can become prolonged expensive commitments. This financial burden disproportionately impacts lower-income parents, potentially creating a two-tiered system of justice.
Therapeutic alliance issues
Effective therapy typically requires a voluntary therapeutic alliance between client and therapist. Court-ordered therapy fundamentally undermines this relationship by introducing coercion, which research shows significantly reduces therapeutic effectiveness. Courts rarely acknowledge this contradiction when mandating treatment.
Lack of cultural competence
Court-ordered therapy often fails to account for cultural differences in approaches to mental health, family dynamics, and child-rearing. This one-size-fits-all approach can result in therapists pathologizing normal cultural variations in parenting or misinterpreting cultural expressions among immigrant families, minority communities, and religious communities.
Confirmation bias in progress reports
When therapists report back to courts, they may exhibit confirmation bias, looking for evidence that confirms initial concerns rather than objectively evaluating progress. Without structured assessment protocols, these subjective impressions can become determinative in custody decisions, further compounding the evidentiary problems.
Adverse effects on children
Court-ordered therapy not only impacts parents but can significantly harm the children it purportedly aims to protect. When therapy is hastily ordered without proper evidentiary basis, it can disrupt already fragile family dynamics during divorce proceedings. Children often perceive these interventions as confirmation that something is “wrong” with them, with their family, or with their parents, potentially exacerbating their emotional distress during an already turbulent time. This problem compounds when children are subjected to repeated evaluations, interviews, and therapy sessions with multiple professionals, creating a sense of instability and preventing them from establishing the consistency and routine crucial for post-divorce adjustment.
Poorly specified therapy orders can inadvertently promote alignment with one parent against the other, particularly when therapists receive unbalanced information or operate with implicit biases. When therapy becomes a battleground for parental disputes (as it often does) rather than a healing space, children frequently feel caught in loyalty conflicts, forced to validate court narratives, or pressured to report back about the other parent’s behavior. Such high-conflict therapeutic environments correlate with increased anxiety, depression, and behavioral problems in children, essentially transforming well-intentioned interventions into adverse childhood experiences that may have long-lasting psychological impacts well into adulthood.
