Since the therapist privilege statute relating to custody cases was first passed in 2002, some lawyers have noticed with alarm (and sometimes with glee, depending on whom they represent) that the statute allows either party in a custody case an absolute veto over the therapist testifying. It has nothing to do with who is the patient: it matters not that the child is the patient, or that the psychologist is eager to testify. It simply allows each party the right to object and keep the testimony out. Now the Court of Appeals has noticed this too, because a mother who was charged with violating the anti-disparagement provisions of the custody order after a psychologist was allowed to testify over objection about her hateful approach to the father appealed. The Court of Appeals pointed out that this does not involve §8.01-399, which gives the patient or client of any practitioner of the hearing arts a right to object to the use of confidential communications coming in. Rather, it is an amendment to §20-124.3:1. The Court of Appeals points out that the language of this new statute is plain and has no exceptions allowing it to be overridden by considerations of best interests of the child. The court is not allowed, under that statute, to admit testimony concerning a parent that was obtained during the course of therapy. Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 20 VLW 260 (7/26/05).
NOTE: THE STATUTE WAS REPEALED IN 2008.