Illinois Law Update – Can a Guardian Ad Litem Speak to a Therapist in My Case?

The Illinois Marriage and Dissolution of Marriage Act in recent years gave the courts in Illinois the authority to order therapy for a minor child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties if it finds that the parents or all parties agree, that the child’s physical health is endangered or that the child’s emotional development is impaired, or that an abuse of allocated parenting time has occurred, or, one or both of the parties violated the judgment with regard to conduct affecting or in the presence of the minor child.  {See 750 ILCS 5/607.6 regarding same}.  However, the same statute previously explicitly indicated that all therapy would be confidential.

As of August 13, 2021, Illinois enacted Public Act 102-349, and the statute is now modified.  It no longer has a provision stating that therapy would be strictly confidential.  This kept all information obtained by a Guardian Ad Litem from a therapist out of litigation, as it was barred based upon the face of the statutory language.  It now says, instead, that “counseling ordered under this section is subject to the Mental Health and Developmental Disabilities Confidentiality Act” and the federal “Health Insurance Portability and Accountability Act of 1996 (otherwise known as “HIPAA”).

So, you may be wondering what this means for Ilinois family law cases.  While the act no longer indicates that therapy shall be confidential in nature, the therapy is confidential for adults unless they sign a proper release.  They are permitted to sign a release to allow the treating therapist to speak to the Guardian Ad Litem, the Child Representative, or to testify in court if they wish to do so.  

How a Guardian Ad Litem Speaking to a Therapist Can Help

This can help in certain scenarios. In the past, it would often be the case that the Court would order therapy, but then have no way of knowing how it is progressing, or if it was helping the family and resolving the underlying issues it sought to resolve. Now, there could be a window into what happens in therapy for the court if the parties sign the relevant releases. Many parties would be eager to do so to demonstrate that they are in compliance with what the court is requesting, or that they are progressing as the court wished, to get them towards a goal, such as to increase parenting time, or to remove restrictions on parenting time.

Of course, it may not be advisable to sign a release to allow a Guardian ad Litem to speak to your treating therapist in all scenarios.  It is imperative that one receives legal advice prior to signing any sort of release for a Guardian Ad Litem to speak with a treating therapist in a family law case.  This will ensure that it will not do any harm or serve to prejudice you or the other party in any way.

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