Children in therapy have a strong interest in maintaining the confidentiality of communications with their therapists. Without the assurance of confidential communications, children may not be as open with their therapists, which can make therapy less effective. Although children have privilege rights to their psychotherapist-patient communications just as adults do, their parents generally hold and exercise that privilege. Many courts have recognized that a parent should not hold a child's privilege when the parent and child have divergent interests. This raises the question of who should hold the privilege in the parent's place. In L.A.N. v. L.M.B., the Colorado Supreme Court decided the child's guardian ad litem (GAL) should hold the child's privilege. The court reasoned that the GAL's expertise with the particular child and general duties toward the child's best interests made the GAL the appropriate privilege holder. Although other jurisdictions have also ruled this way, some states have instead allowed the trial court to make decisions regarding a child's privilege. Awarding the privilege to the court raises issues of impartiality, expertise, and judicial economy. Designating the GAL as the privilege holder is a better solution because it ensures that the child receives an advocate on the privilege issue whose only goal is representing the child's best interests. *
The Guardian Ad Litem as the Child's Privilege Holder,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol87/iss1/5