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Summary
of Child's
Therapist May Not Testify A court presiding over divorce proceedings in Virginia must consider the mental condition of each parent in making custody or visitation arrangements. At the same time, as in most states, statements made to a licensed mental health care provider by a client are privileged (i.e., the provider cannot testify regarding any information obtained while examining or treating a client without the clients permission). Formerly, this privilege was often disregarded during custody or visitation proceedings, because by filing for custody, the parent was considered to have placed his/her mental condition at issue in these proceedings. However, a new law (Va. Code 20-124.3:1) specifically limits the admissibility of mental health records in these proceedings. In this first ruling on the scope of this new law, the Virginia Court Appeals held that this statute not only protects information/records from a parent's therapy, but also prevents the children's therapist from testifying about their mother's behavior, even though the mother was not the therapy client. (Emphasis added.) In this case, the mother had custody of the children; but under Virginia law she is required to foster her children's relationship with their noncustodial parent. The children's therapist testified that the mother (during joint clinical sessions with the children) had denigrated their father. The mother's attorney objected that this information was privileged under Va. Code 20-124.3:1, and that therefore this testimony was not admissible. The trial judge nevertheless held the mother in contempt for this behavior. On appeal, the Virginia Court of Appeals ruled that this testimony should not have been admitted and reversed the contempt finding. The court determined that the new law was not limited to when the parent was a client of the therapist but encompassed any information obtained during or from therapy concerning a parent. Although the new law permits a licensed mental health provider to testify regarding suspected child abuse or neglect or pursuant to a court ordered independent mental health evaluation, the appellate court concluded that a mental health provider's testimony was not allowed merely to promote the administration of justice or to ascertain the best interests of the child. Because the therapist's testimony was given without the mother's permission and this was the only independent testimony about the mother's criticism of the father in the presence of the children, the court reversed the contempt finding. Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005), http://www.courts.state.va.us/opinions/opncavwp/2885044.pdf. | ||||