Can my therapy be used against me in a custody case?

A: Start from the right place: in California nobody has a privilege to refuse to testify except where a statute creates one.¹ The psychotherapist-patient privilege is such a statute, and it is strong — you may refuse to disclose, and prevent anyone else from disclosing, confidential communications with your therapist, whether or not you are a party to the case.² But it is a statute with a list of exceptions, not a wall, and in family court one exception does nearly all the work.

Who holds it, and who must claim it. You do — the patient — unless you have a guardian or conservator.³ Your therapist must claim the privilege whenever they are present and it is being sought, unless a person authorised to permit disclosure instructs otherwise.⁴ The therapist is the custodian and the last line, not the decision-maker.

Associates and trainees are covered. The definition of "psychotherapist" names registered psychological associates, associate marriage and family therapists, associate clinical social workers, psychological interns, marriage and family therapist trainees, associate professional clinical counsellors and clinical counsellor trainees.⁵ If you are seeing a pre-licensed clinician, what you say is privileged.

The exception that decides these cases

There is no privilege as to a communication relevant to an issue concerning your mental or emotional condition "if such issue has been tendered by" you — or by a party claiming through, under or as a beneficiary of you.⁶ Read the verb. The statute requires that the issue be tendered, and it lists who can tender it. There is no custody trigger anywhere in the text, and the other parent's allegation that you are unstable is not on the list of people who can tender your condition.

What that does not mean is that nothing you do can open the door. Whether a particular filing amounts to a tender — a declaration describing your own diagnosis, a request built on your own recovery, an emotional-distress claim in a related case — is a fact-specific question, and it is the question to put to a lawyer before you file, not after.

Two other exceptions come up. The danger exception requires both that the therapist has reasonable cause to believe you are in such a condition as to be dangerous to yourself or to the person or property of another and that disclosure is necessary to prevent the threatened danger.⁷ The child-victim exception requires all of: the patient is a child under 16, the therapist has reasonable cause to believe the child was the victim of a crime, and disclosure is in the child's best interest.⁸

The custody evaluator is not your therapist

If a court appoints a psychologist to examine you, there is no psychotherapist-patient privilege as to that examination — the statute says so, and the only carve-out is for an examiner appointed at the request of a criminal defendant's lawyer.⁹ The evaluation is meant to be filed and served: the report goes to the clerk and to the parties at least 10 days before the custody hearing, and the rules require the evaluator to explain the limits of confidentiality to you in writing and to the child.¹⁰

That is different from the report becoming public. A report containing psychological evaluations of a child or custody recommendations must be placed in the confidential portion of the court file and may be disclosed only to the parties and their attorneys, to specified officials, to counsel appointed for the child, or to anyone else on a court order for good cause.¹¹ An unwarranted disclosure — one made recklessly or maliciously and not in the child's best interest — is monetarily sanctionable, and the Court of Appeal has held those sanctions reach attorneys, not only parties.¹² Do not email the report to your family, and do not quote it in a declaration.

Court-ordered co-parenting counselling: the honest answer is that the statute is silent

A court may order parents and the child into outpatient counselling with a licensed mental health professional for up to one year where the dispute poses a substantial danger to the child's best interest.¹³ Here is the thing worth knowing: that chapter contains no confidentiality provision and no provision authorising the counsellor to report to the court — while the separate statute governing custody mediation does expressly make it confidential.¹⁴ The Legislature knew how to write that clause and did not write it here. So the answer to "is co-parenting counselling privileged" is not settled by the text, which is exactly why you should ask the counsellor, in writing, before the first session, what will be reported to the court.

Your child's records

The privilege belongs to the patient — the Evidence Code does not name a parent as the holder of a child's psychotherapist-patient privilege, and it sets no minimum age.³ Whether one parent can waive it is not answered by the statutory text, and anyone who tells you confidently either way is giving you analysis rather than law.

What the statutes do settle is the role of minor's counsel. Where the court appoints a lawyer for the child, that lawyer has "the right to assert or waive any privilege on behalf of the child," has access to the child's mental health records, and — importantly — the release of those records to counsel is not a waiver of confidentiality.¹⁵ Minor's counsel may also refuse a psychological examination of the child that the court has not ordered.¹⁵

One more provision people misread: the rule that a parent may not be denied access to a child's records because they are the non-custodial parent.¹⁶ It bars denial on that ground. On its face it is not a general override of the Evidence Code.

Do this: if litigation is coming, tell your lawyer you are in therapy before records become an issue, and tell your therapist the day a subpoena arrives — a subpoena is not an order, and there is a specific mechanism for objecting to it. What to do the day a subpoena lands → Do not stop going. And ask any court-ordered counsellor, in writing, what they will report.

Sources

1. Evidence Code §911: "Except as otherwise provided by statute: (a) No person has a privilege to refuse to be a witness. (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing…" — leginfo.legislature.ca.gov.
2. Evidence Code §1014 — the patient, "whether or not a party," has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication. "Confidential communication" is defined at §1012 and expressly "includes a diagnosis made and the advice given by the psychotherapist."
3. Evidence Code §1013 — the holder is the patient, or a guardian or conservator where there is one, or the personal representative if the patient is dead.
4. Evidence Code §1015 — the psychotherapist "shall claim the privilege" when present and authorised under §1014(c).
5. Evidence Code §1010(a)–(o), as amended by Stats. 2021, Ch. 647; §1010.5 extends the privilege to licensed educational psychologists.
6. Evidence Code §1016 — leginfo.legislature.ca.gov. We state only what the section says. Whether a given filing tenders the issue is decided case by case, and this page does not attempt that analysis.
7. Evidence Code §1024.
8. Evidence Code §1027.
9. Evidence Code §1017(a).
10. Family Code §3111(a) — appointment of a child custody evaluator, the Judicial Council standards under §3117, and filing and service of the confidential report at least 10 days before the hearing; California Rules of Court, rule 5.220(d)(2)(C) and (e)(1)(D) — courts.ca.gov.
11. Family Code §3025.5(a)(1)–(4) and §3111(b)–(c). Judicial Council form FL-328, the mandatory notice attached to such a report, states on its face that it "MUST NOT become part of the public court file."
12. Family Code §3111(d) and (f); Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, No. D078643, certified for publication, read on the official California Courts opinion archive — courts.ca.gov.
13. Family Code §3190(a); the purpose is stated at §3191, separate sessions where there is an abuse history at §3192.
14. Compare Family Code §§3190–3193, which contain no confidentiality clause, with Family Code §3177: "Mediation proceedings pursuant to this chapter shall be held in private and shall be confidential."
15. Family Code §3151(c)(5)–(8), and California Rules of Court, rule 5.242 — courts.ca.gov. Appointment of counsel for the child is under Family Code §3150.
16. Family Code §3025.

All sections read on the operative text on 18 August 2026. This page describes the statute; it is not legal advice, and family law turns hard on facts. If your records are being sought, talk to a lawyer before the production date on the subpoena.