Did a noncustodial parent in Oregon have the right to see their child's counseling and therapy records?

Plain-English summary

After parents divorce or separate and one parent gets sole custody, what happens to the noncustodial parent's right to see their child's mental health records? Oregon's family-law statute, ORS 107.154(3), says a noncustodial parent retains the authority "to inspect and receive the child's medical, dental, and psychological records, to the same extent as the custodial parent" unless the court specifically orders otherwise.

The Oregon Board of Licensed Professional Counselors & Therapists asked: does "psychological records" include records made by licensed professional counselors and marriage and family therapists, or only records of licensed psychologists?

Attorney General Ellen F. Rosenblum's office concluded the broader reading. "Psychological" in ordinary English encompasses mental, emotional, and behavioral conditions, which are exactly what professional counselors and marriage and family therapists are licensed to assess, diagnose, and treat. The legislative policy statement (ORS 107.149) explicitly favored encouraging both parents to share in raising children after a separation. That policy supports a broader reading of the statute that lets the noncustodial parent see counseling and therapy records too.

Practical bottom line at the time: a counselor or therapist who got a record request from a noncustodial parent should produce the records, unless the court's custody order specifically restricted that parent's access. Cautious practitioners should ask for a copy of the custody order before disclosing.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

The statutory puzzle

ORS 107.154(3) was enacted in 1987 to set a default rule about parental access to children's records after custody disputes. The statute named three record categories: medical, dental, and psychological. In 1987, professional counselors and marriage and family therapists were not yet licensed under their own statutory scheme; that scheme was added in 1989. So when the 1987 Legislature said "psychological records," it could not have specifically meant counselor-and-therapist records, because those licenses did not exist yet.

The two readings

A narrow reading limited "psychological" to records of licensed psychologists (who were licensed in 1987). A broad reading treated "psychological" as a descriptive term about the nature of the services, not a profession-specific term.

How the AG resolved it

The AG used the PGE/Gaines method: text first, then context, then history. On text, the dictionary definitions of "psychological" all turn on mental processes, behavior, emotions, and reasoning, exactly the substance of counseling and therapy. The statutory definitions of professional counseling and marriage and family therapy in ORS 675.705 explicitly call out "the assessment, diagnosis or treatment of mental, emotional or behavioral disorders" and use "psychotherapeutic principles," which is descriptively psychological work.

Context cut both ways. Looking at the 1987 statutory scheme for psychologists alone could support a narrow reading (the scheme tightly controlled who could "purport to be a psychologist"). But the same statutes recognized that other licensed practitioners (medical, etc.) were permitted to do similar work. The Legislature's session-law policy statement, codified at ORS 107.149, came out for the broader reading: the policy was to encourage parents to share in the rights and responsibilities of raising their children after separation. A narrow reading would frustrate that policy.

The AG concluded counselor-and-therapist records fall within "psychological records" under ORS 107.154(3).

What this meant for practitioners at the time

A licensed professional counselor or marriage and family therapist who received a records request from a noncustodial parent had to either (a) produce the records, or (b) verify from the court's custody order that the noncustodial parent's access had been specifically restricted. The default tilted toward disclosure, against the practitioner's instinct to default to non-disclosure based on the patient's privacy.

The AG also noted that the consent-based exception to general confidentiality in ORS 675.765(1) (consent by "those persons legally responsible for the affairs of the client") is a separate question. Once sole custody is awarded to one parent, the noncustodial parent may no longer be "legally responsible" for the child's affairs in the consent-based sense, but ORS 107.154(3) supplies an independent records-access right that survives.

Common questions

Q: Did the noncustodial parent need a court order to get the child's therapy records?
A: No. Under the AG's reading, the right was the default. The custodial parent could ask the court to restrict access in the dissolution decree, but absent that restriction, the noncustodial parent's access right was automatic.

Q: What if the child was a teenager and asked the therapist not to share?
A: The opinion did not directly address adolescent confidentiality. It interpreted the parental access right under ORS 107.154(3). Therapists working with teenagers should also consider mature-minor doctrines and best-practice ethical guidance from professional associations.

Q: Did this apply to records of licensed clinical social workers?
A: The opinion focused on professional counselors and marriage and family therapists. The same logic likely applies to other mental health practitioners performing psychological work, but the opinion does not expressly say so.

Q: What should a cautious practitioner have done?
A: Asked for a copy of the court's custody order before disclosing. If the order limited the noncustodial parent's access, withhold pursuant to that limit. If silent, default to disclosure.

Background and statutory framework

ORS 107.154 was enacted in 1987 alongside ORS 107.149's policy statement encouraging shared parenting after separation. The licensing scheme for professional counselors and marriage and family therapists came in 1989 (ORS 675.705 et seq.), defining the practice as the assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders.

The opinion reads ORS 107.154(3) consistent with the 1987 policy statement at ORS 107.149, treating the broader reading of "psychological" as the one that gives effect to the legislative purpose.

Citations and references

Statutes:
- ORS 107.154(3) (noncustodial parent records access)
- ORS 107.149 (1987 shared-parenting policy)
- ORS 675.705 (counselor/therapist definitions)
- ORS 675.765 (confidentiality)

Cases:
- State v. Gaines, 346 Or 160 (2009)
- PGE v. BOLI, 317 Or 606 (1993)
- Stevens v. Czerniak, 336 Or 392 (2004)

Source

• Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2018/02/op2018-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

FREDERICK M. BOSS
Deputy Attorney General

ELLEN F. ROSENBLUM
Attorney General

DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION

February 15, 2018

SENT VIA EMAIL ONLY: [email protected]

Charles J. Hill

Executive Director

Oregon Board of Licensed Professional Counselors & Therapists
3218 Pringle Rd. SE, Suite 120

Salem, OR 97302

RE: Opinion Request OP-20 18-1
Dear Mr. Hill:

You have requested our opinion on the right of a noncustodial parent to inspect a child’s
records from a licensed professional counselor or a marriage and family therapist.

QUESTION

Does a noncustodial parent have the same right as a custodial parent to inspect and
receive a child’s records from a licensed professional counselor or marriage and family
therapist?

SHORT ANSWER

Yes, unless the court’s order of sole custody expressly limits the noncustodial parent’s
right. ORS 107.154(3) provides that an order of sole custody to one parent will not deprive the
other parent of the authority to inspect and receive the child’s psychological records to the same
extent as the custodial parent has that authority, unless the court orders otherwise. While this
provision does not define “psychological,” the statutory text and context indicate that this term
includes the services that professional counselors and therapists provide in treating mental,
emotional, and behavioral disorders.

DISCUSSION

A person engaged in the practice of professional counseling or marriage and family
therapy generally may not purport to be a licensed practitioner unless licensed by the Oregon
Board of Licensed Professional Counselors and Therapists. ORS 675.825(1)(b)-(c).
Professional counseling means “the assessment, diagnosis or treatment of mental, emotional or
behavioral disorders involving the application of mental health counseling or other

1162 Court Street NE, Salem, OR 97301-4096
Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (503) 378-5938 www.doj.state.or.us

Charles Hill, Executive Director
February 15, 2018
Page 2

psychotherapeutic principles and methods.” ORS 675.705(7)(a). And marriage and family
therapy is similarly defined as “the assessment, diagnosis or treatment of mental, emotional or
behavioral disorders involving the application of family systems or other psychotherapeutic
principles and methods.” ORS 675.705(6)(a).

These licensed practitioners are generally prohibited from disclosing communications
made by their clients, except, as relevant here, “[w]hen the client or those persons legally
responsible for the affairs of the client give consent to disclosure.” ORS 675.765(1). While this
exception generally allows parents to access their child’s counseling or therapy records, we
assume without deciding that a court order of sole custody to one parent means that the
noncustodial parent is no longer legally responsible for the child’s affairs for purposes of
ORS 675.765(1), and thus no longer has the right to access the child’s records.

However, a court order of sole custody to one parent does not deprive the noncustodial
parent of the authority “to inspect and receive the child’s medical, dental, and psychological
records, to the same extent as the custodial parent may . . . inspect and receive such records.”
ORS 107.154(3). That is, a noncustodial parent by default is not deprived of any right to access
a child’s professional counseling or therapy records if they are considered psychological records
under ORS 107.154(3). However, “psychological” is not defined by statute.

Therefore, we must determine whether “psychological,” as used in ORS 107.154(3),
refers to the type of services provided by licensed professional counselors and therapists, that is,
“the assessment, diagnosis or treatment of mental, emotional or behavioral disorders” by
applying mental health counseling, family systems, or other psychotherapeutic principles and
methods. See ORS 675.705(6)(a), (7)(a) (defining professional counseling and marriage and
family therapy).

We discern the legislature’s intent by looking to the text, context, and legislative history
of ORS 107.154(3).” E.g., State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
“[W]ords of common usage typically should be given their plain, natural, and ordinary
meaning.” E.g., PGE v. Bureau of Labor & Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

1. Text

“Psychological” has several definitions that might be relevant to its use in
ORS 107.154(3): “relating to, characteristic of, directed toward, influencing, arising in, or acting
through the mind esp. in its affective or cognitive functions”; “relating to, concerned with,
deriving from, or used in psychology”; and “dealing with mental phenomena esp. as interpreted
or elucidated by the application of principles of psychology.” Webster’s Third New Int'l
Dictionary 1833 (2002). “Psychology” has several definitions that involve knowledge about
mental processes and behavior. Jd. “Affective” refers to emotions, id. at 35, while “cognitive”
refers to intellectual functions such as thinking and reasoning, id. at 440.

Charles Hill, Executive Director
February 15, 2018
Page 3

Therefore, as relevant here, we conclude that “psychological” refers to knowledge about
mental processes, behavior, emotions, and thinking and reasoning. And the statutory definitions
of professional counseling and marriage and family therapy refer to the assessment, diagnosis, and
treatment of mental, emotional, and behavioral disorders. ORS 675.705(6)(a), 7(a). In addition,
the statutory definition of professional counseling includes the “[a]pplication of intervention
methods based on cognitive, affective, behavioral, systemic or human development principles.”
ORS 675.705(7)(b)(A) (emphasis added). Several of the terms appearing in that definition also
appear either in the definition of “psychological” or of “psychology.”

Furthermore, the statutory definitions of professional counseling and marriage and family
therapy both refer to the application of psychotherapeutic principles and to counseling services
and principles. ORS 675.705(6)(a), (6)(b)(A), (7)(a). “Counseling” is defined as “a practice or
professional service designed to guide an individual to a better understanding of his problems
and potentialities by utilizing modern psychological principles and methods esp. in collecting
case history data, using various techniques of the personal interview, and testing interests and
aptitudes.” Webster’s at 518 (emphasis added). And “psychotherapy” is defined as “treatment
of mental or emotional disorder or maladjustment by psychological means.” Webster’s 1834
(emphasis added); see also Theodore & Renee Millon, Abnormal Behavior & Personality (1974)
(defining “psychotherapy” in the glossary as a “general term for treatment by psychological
procedures”); H.J. Eysenck et al., Encyclopedia of Psychology 886, 889 (1979) (explaining that
psychotherapy “refers to any of a variety of psychological means used to modify mental,
emotional, and behavior disorders” and that “[p]sychotherapy is an applied area of psychology”).
That is, the definitions of both these terms indicate a close relation to psychological principles or
procedures. It is reasonable to conclude that practicing in psychotherapy and counseling
involves providing services of a psychological nature.

A review of the contemporary literature at the time ORS 107.154 was enacted in 1987
confirms this close link between psychology, counseling, and therapy. For example, one text
explained that “[t]he work of the practicing psychologist in the most diverse fields of applied
psychology can be classified into . . . psychodiagnostics[,] counseling[,] . . . and psychotherapy.”
Eysenck et al., Encyclopedia of Psychology at 854.

A contemporary newspaper article explained that while “[t]he three major groups
offering psychotherapy are psychiatrists, psychologists and social workers[,] . . . [t]he social
workers, in turn, are being challenged by a new category of therapist specializing in the
treatment of troubled family and marital relationships.” Daniel Goleman, Social Workers Vault
into a Leading Role in Psychotherapy, N.Y. Times, Apr 30, 1985." The article also referred to
these new practitioners as “counselors.” Jd. The article further explained that “[p]art of the
confusion between the [various professions providing psychotherapy] stems from the fact that,
once they have been trained, what they actually do as therapists can be identical.” Jd.

Charles Hill, Executive Director
February 15, 2018
Page 4

And finally, the federal government job classification of “psychologists” included not
only clinical psychologists and counseling psychologists, but counselors, and explained that this
classification “[i]ncludes formulating and applying psychological principles and laws in
predicting and controlling behavior in society.” Office of Federal Statistical Policy & Standards,
U.S. Dep’t of Commerce, Standard Occupational Classification Manual 66 (1977)

Therefore, a review of the usage of “psychological” and related terms indicates that the
treatment of mental, emotional, or behavioral disorders, as well as the use of psychotherapeutic
and counseling principles would have been considered psychological in nature at the time
ORS 107.154(3) was enacted. In addition, it would have been understood that psychologists,
psychiatrists, social workers, counselors, and therapists were providing services of a similar
nature.

2. Context

We turn next to the statutory context, which includes the relevant session laws and
related statutes. E.g., Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). Statements of
statutory policy are also included in analyzing context. E.g., Havi Group LP v. Fyock,

204 Or App 558, 564, 131 P3d 793 (2006). The session law that enacted ORS 107.154 did not
contain any other reference to the term “psychological,” see Or Laws 1987, ch 795, § 3; nor did
ORS chapter 107 at the time contain any reference to “psychological.” And the statutory scheme
for the licensing of professional counselors and therapists did not yet exist. See Or Laws 1989,
ch 721 (enacting that statutory scheme two years later).

However, the same session law did contain a policy statement indicating that one goal
was “to encourage parents to share in the rights and responsibilities of raising their children after
the parents have separated or dissolved their marriage.” Or Laws 1987, ch 795, § 2 (codified at
ORS 107.149). This suggests we should construe ORS 107.154(3) in a way that furthers the
rights of noncustodial parents, which leads to a broader reading of “psychological.”

While professional counselors and therapists did not yet have a statutory licensing
scheme in 1987, psychologists did have such a scheme. Therefore, those statutes as they existed
in 1987 may serve as useful context to the extent they can be considered related statutes. As we
discuss below, that context cuts both ways.

The “practice of psychology” was defined to include “any psychological service .. .
involving the application of . . . the methods and procedures of interviewing, counseling,
psychotherapy, and hypnosis.” ORS 675.010(4) (1987) (emphasis added). This practice also
included the “diagnosis, prevention, treatment and amelioration of psychological problems and
emotional and mental disorders.” Jd. Counseling and psychotherapy are two services provided
by licensed professional counselors and therapists, as are the diagnosis and treatment of mental,
emotional, and behavioral disorders. ORS 675.705(6)(a), (6)(b), (7)(a). The similarity between
the types of services currently provided by professional counselors and therapists and those
provided by licensed psychologists suggests that the legislature would have considered
counseling and family and marriage therapy to be psychological in nature.

Charles Hill, Executive Director
February 15, 2018
Page 5

However, portions of this statutory scheme suggest a narrower reading of
“psychological.” Without being a licensed psychologist, a person could not “purport to be a
psychologist.” ORS 675.020(1) (1987). That phrase was broadly defined as using any title or
any description of services that incorporated such terms as “psychological” or “psychotherapy.”
ORS 675.020(2) (1987). While other licensed practitioners in the healing arts were exempt from
this prohibition (except that they could not use the terms “psychologist” or “psychometrist”),
ORS 675.090(4) (1987), professional counselors and therapists could not yet be licensed. This
context can be read as an indication that the legislature intended psychological records to refer
only to records of licensed psychologists (and the other licensed practitioners in the healing arts).

We conclude that the statutory scheme of licensed psychologists provides little useful
context in interpreting “psychological” as used in ORS 107.154(3). First, those statutes can be
used to support either a broad or narrow reading of this term. Second, the session law enacting
ORS 107.154(3) did not refer to this licensing scheme, or use the same wording; for example,
ORS 107.154 does not refer to the “practice of psychology” or to licensed psychologists. This is
significant as a related statute dealing with the kind of mental services certain minors could
consent to without parental involvement limited this authority to services from licensed
psychologists and other types of licensed or registered practitioners. ORS 109.675(1) (1987).
That is, the legislature could have used practitioner-specific wording in ORS 107.154(3), but did
not. And third, we find the explicit policy statement contained in ORS 107.149 to be of more
significance.

CONCLUSION

After reviewing both the text and context, we conclude that the services provided by
licensed professional counselors and therapists are psychological in nature for purposes of
ORS 107.154(3). The ordinary usage of “psychological” indicates that this term encompasses
the assessment, diagnosis, and treatment of mental, emotional, and behavioral disorders through
the application of counseling and psychotherapy. And the explicit policy statement that parents
should be encouraged to share in the rights and responsibilities of raising their children after a
separation or martial dissolution guides us to a broader reading of “psychological” that will allow
noncustodial parents the same right of access to counseling and therapy records as possessed by
the custodial parent. However, we note that ORS 107.154(3) provides a default rule that can be
modified by the court in any particular case. A cautious practitioner would seek a copy of the
court’s custody order to make sure the noncustodial parent’s right of access to records has not
been expressly limited.

. Chief Ex nsel
seneral Counsel Division

SAW:nog/DM8609807
c via email: Warren Foote, AAG, DOJ

Charles Hill, Executive Director
February 15, 2018
Page 6

'/ “Custody” in the context of the parent-child relationship is defined as “[t]he care, control, and
maintenance of a child.” Black’s Law Dictionary (10th ed 2014).

” This provision applies “unless otherwise ordered by the court.” ORS 107.154.

Context indicates that ORS 107.154(3) applies in matters of marital annulment, dissolution, or
separation; this opinion does not address parental rights related to juvenile dependency proceedings.

• The legislative history does not contain any guidance on what type of records were intended to
  be encompassed by the term “medical, dental, and psychological.”

“ The article is available at http://www.nytimes.com/1985/04/30/science/social-workers-vault-
into-a-leading-role-in-psychotherapy.html.