Therapy Records and Non-Consideration

JOHNSON V. LAWING, 2023-NCCOA-______ (2023)

When a minor child in the middle of a custody case attends therapy, sometimes those treatment records contain relevant and important facts that may aid a court in making a custody determination. However, not every case in which the child attends therapy means that the therapy records will be considered in making that determination. Below is a case where the mother was denied a modification of custody because she thought that the court had improperly considered her son’s therapy records when they were not admitted as evidence.

(a) Facts: Plaintiff and Defendant were the parents of a minor child. In 2015, Plaintiff father was awarded primary custody, and Defendant mother was given visitation. A modification occurred in 2018 which suspended Defendant’s visitation as long as Defendant resided with her parents in their home. In 2021, Defendant filed to modify custody and also for Plaintiff to show cause, and alleged that she had moved out of her parents’ house, that the minor child had expressed a desire to live with her, that father did not spend much time with the minor child, and that Plaintiff did not keep Defendant informed of medical appointments and school appointments. Defendant’s motion to modify was denied. Defendant appealed.

(b) Issue: Did the trial court err in ruling on matters not admitted into evidence?

(d) Rationale: The evidence that Defendant argued was improperly considered was “counseling records” with the minor child’s therapist. However, it was determined that this consideration was mischaracterized. The trial court had essentially made a finding that there were incidences when Plaintiff failed to notify Defendant of therapy sessions; that Defendant failed to notify Plaintiff of the same; and that the therapy was terminated because the child had met the treatment goals. The Court of Appeals held that these references to the “counseling records” were not consideration of the matters discussed in counseling, but rather the trial court’s addressing of Defendant’s contentions that Plaintiff failed to notify Defendant of medical appointments. This finding was used to dismiss the motion to show cause. There was no further indication that the trial court considered any of the records to dismiss the motion to modify custody.