Navigating Section 607.6 of the IMDMA: The Use of Counseling Communications in Litigation
By Lisa Giese and Melissa Marin
Introduction and Background
Domestic relations cases can be emotionally charged, especially those cases involving minor children. In cases involving disputes over allocation of parental responsibilities, parenting time and other child-related issues, it is not uncommon to see a parent or child(ren) involved in individual therapy, treatment programs, family counseling or reunification therapy. Counseling is frequently directed by court order, either through the parties’ agreement or after the court conducts a hearing. Section 607.6 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) gives the court the authority to order parties and their child(ren) to participate in counseling in certain instances. However, the statute also expressly prohibits the use of said counseling in litigation.
As a brief review of the statute, in January of 2006 the Illinois legislature added section 608(f) to the IMDMA, which provided as follows: “All counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”1 In 2016, the IMDMA underwent a significant reconstruction, and Section 608 was repealed. Therefore, from 2016 to 2017, there was no similar provision contained within the IMDMA. In 2017, the Illinois legislature expanded the provisions dealing with the confidentiality of counseling and added them back into the statute. This provision is now encompassed in section 607.6(d) of the IMDMA.
Under section 607.6, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties.2 Specifically, courts can order counseling if it finds one or more of the following: (1) both parties or all of the parties agree, (2) the child’s physical health is in danger and/or the child’s emotional development is impaired, (3) parenting time abuse has occurred, or (4) one or both parties have violated the allocation judgment with regard to conduct affecting or in the presence of the child.3
This article will focus on subsection (d) of section 607.6 which mirrors the language used in section 608(f) prior to the 2016 amendment of the IMDMA. Section 607.6(d) provides, “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manner in litigation nor relied upon by any expert appointed by the court or retained by any party.”4 Thus, section 607.6(d) allows the court the authority to order counseling but restricts the court’s ability to use those confidential communications in the litigation process.
There is a lack of resources which specifically delineate the policy behind section 607.6(d), however, courts have previously acknowledged the importance of the physician-patient privilege. Specifically, the court in In re Marriage of Lombaer explained that the purposes of “psychiatry” can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny…”5 Another important policy consideration behind section 607.6(d) is likely the legislature’s attempt to prevent parents from utilizing counseling to gain an advantage in litigation. In other words, preventing parents from influencing what their child says or does during their counseling sessions, and then using those records in support of their claims regarding parenting time or allocation of parental responsibilities.
In enacting section 607.6(d), the legislature was also presumably attempting to prevent experts from relying too heavily on therapists’ opinions when conducting their investigation and issuing recommendations to the court. For a number of reasons, therapists are not the most qualified people to make recommendations regarding a child’s best interest to the court. For one, since a therapist’s duty is to treat their client, their recommendations are typically made in accordance with their duty to the patient’s mental health, which may be different than the best interest factors of the IMDMA. For example, a therapist is less likely to consider the role another parent played in failing to facilitate the relationship between a child and the other parent, since their focus is not on the cause but rather the effect on the child. Second, a therapist may only speak with the child(ren) and not the parents or other third parties. Therefore, they may not have an entire picture of the parties or facts. Third, the therapist may not be qualified or specialize in therapy with children or families, and they may not know whether a parent has attempted to manipulate what the child says or does during their therapy sessions. Finally, the therapist may not understand the personal motives of the child’s parents and in what way they intend to use the information obtained from the counseling sessions.
Section 607.6(d) may be difficult to interpret, particularly as it relates to the implications on GALs and custody evaluators. The plain language interpretation of section 607.6(d) does not allow an evaluator or other expert to consider any part of court ordered counseling when determining the best interests of the child(ren) or when issuing recommendations to the court. A more thorough analysis into section 607.6(d) raises many questions that have yet to be answered by the courts. For example: Is a GAL considered an expert? What constitutes “counseling” under the statute? Are there any exceptions to the statute? Can this provision be waived by the parties? This article will analyze the different interpretations of section 607.6(d) and its implications on a GAL’s ability to determine what is in the best interest of the minor child(ren). It will also explore whether a waiver of the provision is enforceable, either expressly or implicitly.
Section 607.6(D) Conflicts with Other Statutes and Superior Authority in Illinois in That it Impedes the Role of a Gal
A GAL has two major functions in a family law case: first, to investigate the facts of a case to determine what is in the best interest of the minor child(ren), and second, to give opinions and to make recommendations to the court in accordance with his or her best interest determination. Specifically, section 506(a)(2) of the IMDMA states:
The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.6
One way that GALs investigate the facts is by relying on third party collateral witnesses, who often provide thorough and unbiased information. Counselors, particularly those with an established history with a child or family, can prove to be an invaluable resource and point of reliance for GALs. However, section 607.6(d) limits a GAL’s ability to use those resources as a part of his or her investigation which conflicts with the GAL’s role and impedes their ability to act in the child’s best interests.
The plain language reading of section 607.6(d) would suggest that its reach is broad and unequivocal. It provides that “all counseling sessions shall be confidential” and that “the communications in counseling shall not be used in any manner in litigation.”7 The Illinois Supreme Court has found that when interpreting a statute, “[i]t is improper for a court to depart from the plain statutory language by reading into the statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent.”8 As such, under the plain language reading of the statute, without exception, counseling sessions are not accessible to a GAL nor are they admissible in court for any purpose, as clearly the GAL role falls within the scope of litigation in that they are appointed by the court. The argument could be made that if a GAL were to consider counseling communications, it would circumvent section 607.6(d) entirely.
However, the plain language of the statute directly conflicts with superior authority, namely, Supreme Court Rule 907. Supreme Court Rule 907 states, in relevant part:
(b) Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.9
The Illinois Supreme Court has found that “[a] statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses.”10 While some may argue that the provisions of section 607.6(d) are clear under the plain language interpretation, others could argue that it is actually quite ambiguous. For example, there is no definition of what constitutes an expert nor is it clear whether a GAL would qualify as an expert. Further, section 607.6(d) is a statutory rule of evidence governing the admissibility of counseling sessions in family law litigation. Case law provides that, “[i]t is well settled in Illinois that where a supreme court rule conflicts with a statute on the same subject, ‘the rule will prevail.’”11
Supreme Court Rule 907 creates an affirmative obligation for the court to give the GAL access to “all relevant documents” related to the child(ren). Sections 602.5 and 602.7 of the IMDMA expressly state “the mental and physical health of all individuals involved” are to be considered in determining the best interests of the minor child(ren) as it relates to allocation of parenting time and decision making responsibilities.12 As such, “all relevant documents” must include confidential counseling communications such as therapist notes, reports, and other documents prepared by a treating provider. Arguably, the child(ren)’s wishes, another best interest factor, could also be ascertained from counseling communications, further supporting the relevancy of these documents.
The language used in Supreme Court Rule 907 mirrors language that has been used in Illinois Supreme Court case precedent related to GALs. The Illinois Supreme Court has repeatedly held that “[w]hen determining the best interests of a child, the circuit court should hear any and all relevant evidence.”13 Again, this language seems to be directly in conflict with the language of section 607.6(d) in that counseling sessions in which a child is engaged are surely relevant to the GAL’s investigation of the child(ren)’s best interest.
The conflict between 607.6(d) and superior Illinois authority is analogous to the issue in In re Marriage of Karonis, wherein the Illinois Eavesdropping statute prohibited the use of certain evidence, yet the GAL was permitted to use the evidence obtained in violation of the statute in his or her investigation. In Karonis, the Illinois Appellate Court held that a GAL is permitted to hear illegally taped recordings between a father and his children.14 In that case, the father argued that the trial court improperly allowed the GAL to listen to recordings of telephone conversations between him and his children that violated the Illinois Eavesdropping statute.15 The Illinois Eavesdropping statute specifically prohibits the use of illegally obtained information from being used at trial.16 The father further argued that although the tapes were properly barred from being admitted into evidence, they were effectively used as evidence because the trial court allowed the GAL to use those tapes to prepare their recommendations to the court.17 The GAL in that case felt that the children were being improperly influenced by their father and that the tapes were relevant to their investigation.18 The Appellate Court upheld the decision of the trial court and held that:
Section 506 of the Illinois Marriage and Dissolution of Marriage Act requires the GAL to defend and protect the best interest of the child whom he or she represents. In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial. Compelling reasons of public policy dictate that the GAL perform duties essential to the health and welfare of the child whom the GAL represents.19
As such, if a GAL is allowed to listen to illegally obtained recordings in order to defend a child’s health and welfare, a strong argument could be made that a GAL should be allowed to access information from counseling sessions in which a child is engaged because counseling sessions are directly related to the child’s health and welfare. Even though the information may not be otherwise admissible as evidence at trial, a GAL could still rely on the information when determining and advocating for the child’s best interests.
Furthermore, the Illinois Supreme Court has held that the legislature cannot usurp the authority of the Court by enacting statutes that conflict with Illinois Supreme Court precedent.20 For example, the legislature cannot, via statute, prohibit the discovery of evidence that Supreme Court precedent or rules allow. Therefore, section 607.6(d) presumably exceeds its authority in that it directly conflicts with the Illinois Supreme Court rules and case law that permits a GAL to rely on any relevant evidence.
Additionally, other Illinois laws related to counseling allow for the disclosure of confidential counseling records under limited circumstances. Specifically, the Mental Health and Developmental Disabilities Confidentiality Act allows a GAL access to counseling records.21 Although it is widely recognized that individuals participating in therapy, including minor children, undoubtedly have a strong interest in maintaining the confidentiality of their communications with their therapists, for minors over the age of 12, but under the age of 18, confidentiality with their therapist is limited.22 Section 110/4(a) of the Act provides, in relevant part:
[t]he following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof…(5) an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right.23
The Mental Heath and Developmental Disabilities Confidentiality Act allows a GAL to inspect a copy of the child(ren)’s mental health records even if they are older than 12 and have not consented, if the court grants them permission to do so. However, this provision, among others, is in direct conflict with section 607.6(d), which precludes a GAL from accessing a minor’s confidential counseling records and using those communications with their therapist in litigation when the counseling was court ordered.
The conflict between 607.6(d) and superior Illinois authority such as Supreme Court Rule 907, creates a serious impediment to a GAL’s ability to access all relevant information regarding the child(ren) when conducting their investigation and issuing recommendations to the court. Not only does section 607.6(d) conflict with Illinois Supreme Court Rule 907, but it also conflicts with Illinois case law and the Mental Health and Developmental Disabilities Confidentiality Act, which allow an exception for a GAL to access confidential information when it is relevant and related to the health and welfare of the child(ren) during his or her investigation.
Section 607.6 Does not Address Whether Waiver of its Provisions is Possible or Enforceable
Given the lack of case law in Illinois discussing section 607.6(d), another issue yet to be addressed by the court is the possibility of waiver, express or implicit. Proponents of a plain language reading of the statute would argue that section 607.6(d) does not discuss waiver at all. As such, if the legislature intended the statute to be subject to the possibility of waiver, it would have provided for a provision allowing waiver. However, section 607.6(d) does not expressly state that these communications are privileged, non-discoverable, or inadmissible, and therefore the statute is not absolute. The Illinois Supreme Court in Klain v. Southern Illinois Hosp. Services, explained “…to create a privilege, the plain language of the statute must explicitly state that the information that is confidential is also privileged, non-discoverable, or inadmissible.”24
If it is assumed, for the sake of argument, that the provisions of section 607.6(d) are not absolute and that waiver is possible, it still remains unclear what language would be necessary to effectuate a proper waiver and in what forms a waiver could take place. For example, is it required that the parties execute an agreed order expressly waiving the provisions of section 607.6(d)? Or do the parties implicitly waive section 607.6(d) by signing a release for the GAL to speak with a counselor otherwise protected under 607.6(d)?
Notably, the Nineteenth Judicial Circuit Child Representation Order already contains provisions that provide for the release of mental health information to the GAL in accordance with the Mental Health and Developmental Disabilities Confidentiality Act. Specifically, Paragraph 7 of the Child Representation Order provides for two releases:
1. If one or more of the children herein is over the age of 12 and is or has been the recipient of mental health or developmental disabilities services, the attorney appointed herein is given leave to file a motion requesting an order authorizing him or her to inspect and copy any record kept by the therapist or agency in the course of providing such services pursuant to 740 ILCS 110/4(a)(5).
2. If one of more of the children herein is under the age of 12 and is or has been the recipient of mental health or developmental disabilities services, the attorney appointed herein is given leave to file a motion requesting an order directing one of the parents to sign releases authorizing him or her to inspect and copy any record kept by the therapist or agency in the course of providing such services pursuant to 740 ILCS 110/4(a)(1).
An unpublished case on this topic suggests waiver of section 607.6(d) is possible in instances in which attorneys have carefully crafted an agreed order. The agreed order would have to name with whom the GAL may communicate, what records the GAL may access, and allow the GAL to use that information in the litigation when determining the child(ren)’s best interest and making recommendations to the court. This suggests an implied waiver cannot exist, however, there is no direction on what happens if a GAL communicates with a counselor in violation of the 607.6(d). Presumably you cannot un-ring the bell (i.e. remove it from consideration in forming an opinion in the best interests of the child). Therefore, if a GAL had knowledge of information prohibited by statute, it could potentially be grounds for the removal of a GAL.
Although the possibility of waiver may not be expressly delineated in section 607.6(d), the language of the statute does not necessarily rule out the possibility of waiver because it does not state that counseling communications are privileged, non-discoverable, or inadmissible. If waiver is possible, attorneys will likely need to be very specific in the language they use to effectuate the waiver. In practice, this means that it must be clear to the parties, the GAL, and the court, the therapists with whom the GAL may communicate and what information the GAL may access from them. Further, the waiver must allow the GAL to not only access the confidential communications, but also use that confidential information when determining the best interests of the child(ren) and issuing their recommendations to the court.
Conclusion: Section 607.6 Is Vague and is Therefore Being Inconsistently Applied by the Court
Although the intent and policy behind section 607.6(d) is legitimate, the way the statute is written creates a significant problem concerning the scope of the statute. In turn, this makes section 607.6(d) difficult for practitioners to interpret and understand when it applies to their case. With so many unanswered questions, clarification of the statute’s provisions should be of paramount concern for Illinois courts and practitioners. If clarification is not provided, the provisions of section 607.6(d) could be applied inconsistently, making it extremely difficult for lawyers to know when and how section 607.6(d) might impact their cases. Going forward, it is clear that lawyers must be extremely careful when drafting court orders, especially if they are seeking to obtain a potential waiver of the section 607.6(d) provision. Further, given the importance of GALs in family law cases, section 607.6(d) should provide more details regarding whether they are exempt from considering confidential counseling communications when preparing their recommendations to the court.
1. 750 ILCS 5/608(f). Repealed by P.A. 99-90, eff. Jan. 1, 2016.
2. 750 ILCS 5/607.6(a).
4. 750 ILCS 5/607.6(d).
5. 5 In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388, 394 (1st Dist. 1990).
6. 750 ILCS 5/506(a)(2).
7. 750 ILCS 5/607(d). (Emphasis added).
8. In re Marriage of Goesel, 2017 IL 122046, 102 N.E. 3d 230, 235 (2017).
9. Ill. Sup. Ct. R. 907 (emphasis added).
10. Goesel, 102 N.E. 3d at 235.
11. Dalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper and Kramer, Inc., 372 Ill. App. 3d 362, 865 N.E.2d 442, 450 (1st Dist. 2007).
12. 750 ILCS 5/602.5; See also 750 ILCS 5/602.7.
13. In re Marriage of Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532, 545 (2003). (Emphasis added).
14. In re Marriage of Karonis, 296 Ill. App. 3d 86, 639 N.E. 2d 1282, 1284 (2d Dist. 1998).
15. Id. at 1285.
16. 720 ILCS 5/14-5.
17. Karonis, 639 N.E. 2d at 1285.
19. Id. at 1286.
20. Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047, 1051-55 (1997).
21. 740 ILCS 110/4(a)(5).
22. 740 ILCS 110/4.
24. Klain v. Southern Illinois Hosp. Services, 2016 IL 118217, 47 N.E.3d 966, 971 (2016).
Lisa M. Giese is a partner in the law firm of Kollias & Giese, P.C. in Wheaton, Illinois practicing in the area of domestic relations. She received her undergraduate degree from Michigan State University and her J.D. from Loyola University Chicago, with a certificate in Child and Family Law. Lisa is chair of the Children’s Advocacy Committee for DCBA.
Melissa Marin is an Associate Attorney at Kollias & Giese, P.C. in Wheaton, Illinois practicing in the area of domestic relations. Melissa received her undergraduate degree from DePaul University in 2015. She later received her Juris Doctorate from DePaul University College of Law in May 2019, with a certificate in family law.