Child Privilege Attorney

In a number of custody cases, the court appoints a Child Privilege Attorney.  In Maryland, we sometimes call them Nagle v. Hooks attorneys after the case that gave rise to the concept.  A Child Privilege Attorney is a lawyer appointed in child custody cases in which the child is seeing or has seen a mental health professional and either one of the parents or a court evaluator wants that professional to provide information to the court.  The problem is that anything the minor child says or has said to that person is privileged, which means the professional may not tell anybody anything unless the patient says it's OK.  The problem is that the patient is a child, who by definition, is incompetent to waive the privilege.  Normally, the parents are the people who waive or assert the privilege for the children.  The problem is that in custody cases, sometimes what helps the parent's case is not always in line with what is best for the child.  Some parents are sure that the mental health professional will give information that will make their case, and they want it to come out in court, even if it means that nothing the child ever says to that professional will be privileged again.  That's where the Child Privilege Attorney comes in.  That person talks to the child and talks to the mental health professional and decides whether or not to waive the child's privilege with that professional. 
I have a few cases right now with Child Privilege Attorneys.  In onein particular, the Attorney declined to waive the privilege.  My client asked me why.  I think that's a good question, and one very few clients ask.  As a Child Privilege Attorney, these are things I think about when decided whether to waive the privilege. 
1.  Did the mental health professional tell the child that nothing they said would ever be told to anyone else?  If they did and the child believed them, I would be concerned that a waiver would hurt the relationship between the child and that professional going forward because of a lack of trust.  Even if the child isn't seeing that professional any more, I would be concerned on the effect a waiver would have on future relationships with similar professionals.
2.  What kind of effect would the waiver have on the child's ability to be candid with the professional in the future?  I would be concerned that a waiver may make the child reluctant to share information, even with a different mental health professional, and that reluctance would negate the benefit of a successful professional relationship.
3.  If the information the professional has is damaging to one parent or the other, what effect would the revelation of that information have on the child's relationship with that parent?  In other words, will the parent take out their anger concerning the revelation on the child?
4.  Is the information the mental health professional has even important?  Sometimes, it's just not.
5.  Can the information the mental health professional has be obtained by less intrusive means?  Can one side or the other get that information from a teacher, a neighbor or a coach?  If they can, I don't want to waive.

There's a lot that goes into deciding whether or not to waive the privilege a child has with a mental health professional.  On a good day and when litigation is not looming, most parents can ask those questions and make the correct decision.  The competing interests between what the parent wants and what is best for the child that arises during a custody action causes the court to question whether a parent can make the right decision.  The court would rather not take a chance with something so important, so they appoint a Child Privilege Attorney.  Here in the Trenches.