The first question a therapist asks a separated parent is "who has legal custody?" — and the second is "what does the order say?" Both have statutory answers, and there is a third the parents often forget: at 12, the child may not need either of them.
The short answer: it depends on the custody order, and on the child's age. "Joint legal custody" means "that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."¹ But sharing is not a veto. "In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child."² So unless your order names mental health treatment as a both-parents decision, either of you can consent. With "sole legal custody," "one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."³ And from 12, the child can consent for themselves: "A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis … if the minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services."⁴ The one thing a child cannot consent to alone is medication: the section "does not authorize a minor to receive convulsive therapy or psychosurgery … or psychotropic drugs without the consent of the minor's parent or guardian."⁴ Whatever the order says about consent, "access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent."⁵
Read the order first
Section 3083 is the provision to have in your hand. A joint-legal-custody order "shall specify the circumstances under which the consent of both parents is required," and "in all other circumstances, either parent acting alone may exercise legal control of the child."² Orders differ in what they list as both-consent decisions. If yours is silent on therapy, either parent may consent to it, and the other cannot block it by withholding a consent the statute does not require; the objecting parent's remedy is to ask the family court to modify the order.² For the decisions that do require both parents, the order must state "the consequences of the failure to obtain mutual consent" — section 3083 requires it.² An order "shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court."² Therapy records in a custody case →
If one parent has sole legal custody, that parent decides.³ The other parent keeps the records right.⁵
From 12, the child's own consent
Two overlapping statutes let a minor consent to their own outpatient mental health care. Under the Family Code, a minor "12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services."⁴ Under the Health and Safety Code, "a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services."⁶ Neither requires a parent's signature, and neither asks which parent objects.
Three things follow:
- A parent is still involved, by default. The treatment "shall include involvement of the minor's parent or guardian unless the professional person who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate," and the therapist "shall state in the client record whether and when the person attempted to contact the minor's parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why … it would be inappropriate."⁴ ⁶ Neither statute says what makes involvement inappropriate, or which parent; that is the therapist's judgment after consulting the child.
- Parents do not pay unless they take part. "The minor's parents or guardian are not liable for payment for mental health treatment or counseling services provided pursuant to this section unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian";⁴ the Health and Safety Code says the same in the singular.⁶
- Medication is different. Neither section authorizes "psychotropic drugs without the consent of the minor's parent or guardian."⁴ ⁶ The statutes do not say whether one parent's consent suffices; under section 3083 that turns on whether the order makes medical decisions a both-consent circumstance.²
Can my teen see a therapist? → · Therapy at 12 →
Records: what the other parent can and cannot see
Section 3025 gives the non-custodial parent the same access to records as the custodial parent.⁵ But when the child has consented to their own care, a different statute applies to both parents alike — section 3025 forbids denial because a parent is non-custodial, and section 123115 denies both parents equally, so the two do not conflict. "The representative of a minor" — which includes "a parent or guardian of a minor who is a patient"⁷ — "shall not be entitled to inspect or obtain copies of the minor's patient records, including clinical notes," in three circumstances: records "with respect to which the minor has a right of inspection" — a minor "shall be entitled to inspect patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent"; records where "the health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being"; and records that "relate to services described in Section 6924 … of the Family Code, or Section … 124260 of this code, when obtained by a patient who has the mental capacity to provide consent and is at or above the minimum age for consenting to the service."⁷ Section 3025 says a parent cannot be denied records for being non-custodial; section 123115 says either parent can be denied the records of care the child consented to alone, or where the provider decides access would damage the therapeutic relationship or the child's safety or well-being. Can a therapist tell my parents? →
What to do
- Get the custody order and read the legal-custody paragraph. If therapy is not a listed both-consent decision, either parent may consent.² Give the therapist a copy.
- If the order requires both parents' consent and one refuses: the order should state the consequences;² the remedy is a motion in the family court, not a standoff at the therapist's office. Meanwhile, a child of 12 or older who is mature enough may consent on their own.⁴ ⁶
- If you are the parent being cut out: ask for the records under section 3025,⁵ and expect the therapist to decline the parts the child consented to alone or that would harm the child.⁷ Ask instead to be involved; the statute presumes you will be unless the therapist decides otherwise after talking to the child.⁴ ⁶
- For medication: the minor-consent statutes do not authorize it without a parent's or guardian's consent;⁴ ⁶ if the order makes medical decisions joint, both parents'.² Does my child need ADHD medication? →
Worked example
Divorced parents share joint legal custody; the order lists "non-emergency medical and dental treatment" as decisions requiring both parents' written consent and says nothing about counselling. The mother enrols their 10-year-old with a therapist; the father objects. On the most natural reading of the order — therapy is not named — "either parent acting alone may exercise legal control" and the mother's consent suffices;² the father could argue that counselling is "non-emergency medical treatment," and that dispute belongs to the family court. If the order is read, or amended, to cover therapy, the father's refusal triggers the consequence the order specifies and the mother's route is a motion.² Three years on, the same child, now 13, asks the therapist to continue without either parent's involvement; if the therapist judges her mature enough, she may consent for herself,⁴ ⁶ the parents are not liable for the fees unless they participate,⁴ ⁶ and neither parent is entitled to those session records.⁷ When the psychiatrist proposes an SSRI, the minor-consent statutes do not reach it without a parent's consent, and if the order treats medical decisions as joint, both must.⁴ ⁶ ²
Q&A
Q: We have joint legal custody. My ex enrolled our 8-year-old in therapy without telling me. Is that legal? A: Unless your order lists mental health treatment among the circumstances requiring both parents' consent, "either parent acting alone may exercise legal control of the child."² You are entitled to the records.⁵
Q: Can I stop my 14-year-old seeing a therapist my ex chose? A: If the therapist judges your child mature enough, the child's own consent is sufficient;⁴ ⁶ neither parent's objection ends it. The treatment must, however, include involvement of a parent or guardian unless the therapist decides that would be inappropriate; the statute does not say which parent.⁴ ⁶
Q: My ex won't consent to medication. Can the doctor prescribe anyway? A: The minor-consent statutes do not authorize psychotropic drugs "without the consent of the minor's parent or guardian."⁴ ⁶ Whether one parent's consent is enough depends on the custody order.²
Q: I have sole legal custody. Does my ex get the therapy records? A: Records "shall not be denied to a parent because that parent is not the child's custodial parent";⁵ the exceptions are the records of care the child consented to alone and cases where access would harm the child.⁷
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Sources
- Cal. Family Code §3003 — "'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child" — california.public.law.
- Cal. Family Code §3083 — "In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court" — california.public.law.
- Cal. Family Code §3006 — "'Sole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child" — california.public.law.
- Cal. Family Code §6924 (operative 1 July 2024) — (b) "A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services"; (d) "The mental health treatment or counseling of a minor authorized by this section shall include involvement of the minor's parent or guardian unless the professional person who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate. The professional person who is treating or counseling the minor shall state in the client record whether and when the person attempted to contact the minor's parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the professional person's opinion, it would be inappropriate to contact the minor's parent or guardian"; (e) "The minor's parents or guardian are not liable for payment for mental health treatment or counseling services provided pursuant to this section unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian"; (f) "This section does not authorize a minor to receive convulsive therapy or psychosurgery as defined in subdivisions (f) and (g) of Section 5325 of the Welfare and Institutions Code, or psychotropic drugs without the consent of the minor's parent or guardian" — california.public.law.
- Cal. Family Code §3025 — "Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent" — california.public.law.
- Cal. Health & Safety Code §124260 — (b)(1) "Notwithstanding any law to the contrary, a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services"; (c) the parent-involvement rule and the client-record note in the same terms as §6924(d); (d) "The minor's parent or guardian is not liable for payment for mental health treatment or counseling services provided pursuant to this section unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian"; (e) "This section does not authorize a minor to receive convulsive treatment or psychosurgery, as defined in subdivisions (f) and (g) of Section 5325 of the Welfare and Institutions Code, or psychotropic drugs without the consent of the minor's parent or guardian" — california.public.law.
- Cal. Health & Safety Code §123115(a) — "The representative of a minor shall not be entitled to inspect or obtain copies of the minor's patient records, including clinical notes, in any of the following circumstances: (1) With respect to which the minor has a right of inspection under Section 123110. (2) When the health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being …; §123105(e)(1) defines the representative to include "A parent or guardian of a minor who is a patient" — california.public.law; (3) When records relate to services described in Section 6924, 6925, 6926, 6927, 6928, 6929, or 6930 of the Family Code, or Section 121020 or 124260 of this code, when obtained by a patient who has the mental capacity to provide consent and is at or above the minimum age for consenting to the service specified in the respective section" — california.public.law; §123110(a) — "A patient who is a minor shall be entitled to inspect patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent" — california.public.law.
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