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Questions You Want Answered > Child Custody and Support > What is a Child Privilege Attorney?

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 A Child Privilege Attorney, sometimes referred to in Maryland as a Nagle v. Hooks attorney, is a lawyer appointed by the court in a custody case when the minor child is or has been under the treatment of a mental health professional.  The sole job of that lawyer is to decide whether or not to waive the minor child's patient privilege with that professional, and permit the mental health professional to testify or otherwise speak with people involved in the custody case.  Without a waiver, the mental health professional is not permitted to tell anyone what was said in sessions with their patient.  Sometimes, one of the parents will request the appointment of such and attorney, and sometimes other professionals involved inthe case, for example custody evaluators will ask for it. 

The reason the child cannot waive the privilege is because the law does not consider a person younger than 18 years of age to be competent to do so.  In the normal course of life, usually the parents have the right to waive or assert such a privilege on behalf of their child.  In a custody case, sometimes one parent wants the mental health professional and their interactions with the minor child to be made public for reasons related to what they want from the litigation.  Such a parent necessarily believes that those reasons make it in the child's best interest to waive the mental health privilege and permit the professional to testify.  That parent may not see the down side of waiving that privilege for the child; such as, whether the child would feel like they could speak freely to that or any other professional in the future, knowing what they say might not be private, and what effect that would have on their treatment; and any repercussions from one parent or the other as a result of any disclosure.  It might also be possible to present the information possessed by the mental health professional from a different source, and thus not require disclosure.  The Court understands that in a custody dispute, sometimes there is a conflict between what the parent wants and needs in the litigation and what the child needs.  A Child Privilege Attorney weighs all of the different factors, including whether the information possessed by the mental health professional is truly so important as to require disclosure, and decides, in place of the parent, whether or not to waive the privilege the minor child might have with any mental health professional.

Last updated on January 14, 2013 by Karen Robbins, Attorney at Law