Custody and visitation cases; admissibility of mental health care records. (SB330)

Introduced By

Sen. Fred Quayle (R-Suffolk)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Admissibility of mental health care records in custody and visitation cases. Repeals the current law that provides that in any case in which custody or visitation of a child is at issue, the mental health records concerning a parent shall be privileged and confidential and the mental health care provider may not be required to testify on behalf of or against a parent or any of the parent's adult relatives. Read the Bill »


Bill Has Passed


01/08/2008Prefiled and ordered printed; offered 01/09/08 086263308
01/08/2008Referred to Committee for Courts of Justice
01/10/2008Assigned Courts sub: Civil
01/30/2008Reported from Courts of Justice with substitute (13-Y 1-N) (see vote tally)
01/31/2008Committee substitute printed 080847308-S1
02/01/2008Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/04/2008Read second time
02/04/2008Reading of substitute waived
02/04/2008Committee substitute agreed to 080847308-S1
02/04/2008Engrossed by Senate - committee substitute SB330S1
02/05/2008Read third time and passed Senate (39-Y 0-N) (see vote tally)
02/05/2008Communicated to House
02/12/2008Placed on Calendar
02/12/2008Read first time
02/12/2008Referred to Committee for Courts of Justice
02/14/2008Assigned Courts sub: Criminal
02/14/2008Assigned Courts sub: Mental Health
02/29/2008Reported from Courts of Justice (21-Y 0-N)
03/04/2008Read second time
03/05/2008Read third time
03/05/2008Passed House BLOCK VOTE (97-Y 0-N)
03/05/2008VOTE: BLOCK VOTE PASSAGE (97-Y 0-N)
03/08/2008Bill text as passed Senate and House (SB330ER)
03/08/2008Signed by Speaker
03/11/2008Signed by President
03/12/2008Signed by Speaker
03/12/2008Signed by President
04/02/2008G Approved by Governor-Chapter 809 (effective 7/1/08)


Alison Hymes writes:

This is prejudice, pure and simple and will enable one party to a divorce to hold over the other their counseling records to gain advantage. It privileges those who need treatment but do not seek it over those who need treatment and do seek it for the sake of their children and themselves. This is bad law.

Richard writes:

I disagree with Ms. Hymes:

We need to give some credit to our judges that they will be able to see through the attempt to exploit mental health records, vs. a truely serious situation where a child's life may be endangered. Apparently Virginia is the only state that restricts judges access to this information.

To quote an editorial in the dailypress:

"But back in 2003 Virginia made a misstep, becoming the first and only state to prohibit the admission of almost all meaningful evidence in child custody and visitation cases regarding parents' mental health and their parenting strengths and weaknesses. This, despite the fact that Virginia law does require courts to consider the condition of parents in such cases."

"The total restriction of a judge's access to important –– and, some could rightly argue in certain cases, lifesaving –– information is a major flaw in Virginia's system that needs to be corrected.",0,1692785,print.story

Alison Hymes writes:

If a parent is a danger to their child, their therapist or psychiatrist is already required to file a report to the child protective/social services authorities. Child abuse or endangerment of a child is NOT protected clinical information. So it is simply not the case that this law will provide any more safety to children. If their parent is in treatment and the child is in danger, there will be a child abuse report on record which the judge CAN consider. There is NO need to invade the parent's privacy and there is NO reason to give Virginia judges credit for being any less prejudiced against people who seek mental health treatment than the general population.

Trial lawyers are the ones who are upset about the bill that was passed, not mental health professionals or judges. Trial lawyers have been lobbying to have this bill repealed ever since it was passed.

Richard writes:

Obviously we disagree, so I'm not going to continue beyond this post, but I need to point out that your statements about trial lawyers being the ones upset about this is not accurate, the editorial I referenced was by two psychologists. Additionally, I am not a trial lawyer, and I am concerned about the issue, and I share the same concerns as were voiced in the editorial about judges not having information vital to determining the best interest of the child.

Alison Hymes writes:

Just because you read one editorial by 2 psychologists who obviously don't understand the ethics of their profession and you are concerned yourself doesn't mean it isn't trial lawyers who have been fighting to have this law repealed since it was passed and who fought against it being passed originally. Your logic is faulty.

Alison Hymes writes:

Therapists Still Cannot Be Compelled to Testify Against Patients in Custody and Visitation Cases
Virginia Code Section 20-124.3:1 prohibits one parent from using the testimony of that parent's therapist against him or her. An effort during the Virginia 2007 General Assembly by Virginia Family Law attorneys to repeal this provision of the Virginia Code failed this month.

As I said, it is trial lawyers who want to repeal this confidentiality protection.

Alison Hymes writes:

Rob Bell, in whose sub-committee this bill is now, helped to pass the original bill that is being repealed in SB330. Delegate Bell knows the importance of this protection and how hard it was to get in the first place, I'm sure he will do the right thing and vote against repealing the bill he helped pass when he came to the House of Delegates.

James Carr writes:

This statute, appears to have been formulated soley for the protection and convenience of the psychiatric profession, who do not want to be involved in domestic litigation. The statute is working a terrible injustice to children who should be the first priority in custody determinations. It is patently incredible that a parent who has a history of suicidal or self-inflicting injury behavior, substance abuse issues, and/or irrational actions, and has been the subject of psychiatric treatment for the same can hide behind this statute and cloak their psychiatric history from the consideration of a Court. Ms. Hymes is right on one thing - trial lawyers, specifically experienced domestic trial lawyers, totally support the repeal of this statute. Why? Because ever since this bill has passed they have seen firsthand the irrational results and damage to children that this statute produces.

Alison Hymes writes:

Prove it. Kids are still being taken away from parents who have severe mental illness in this state, this law is not about that, it is about taking away the confidentiality of parents who have recovered or who have simply sought counseling or psychotherapy.

Alison Hymes writes:

Now all married parents will have to decide between seeking therapy or treatment for mental health issues or risking the loss of custody or even visitation with their own children due to the overwhelming ignorance and prejudice of judges and trial lawyers about mental health and counseling and that it is the parent who never sought treatment you should be worrying about. Yay ignorance and prejudice, you win again and children lose.

Richard writes:

Ms. Hymes, you demand proof from other posters for their assertions, yet your posts are full of unsupported assertions and comments verging on name-calling (i.e. referring to the "overwhelming ignorance and prejudice" of Virgina judges and family law attorneys, referring to the psychologists who wrote the editorial in the Richmond Sunlight as "not understanding the ethics of their profession"). Please cease posting until you start living up to the same standards that you so rudely demand of other posters.

Elizabeth writes:

I disagree with Ms. Hymes as well. As a parent that has been trying to protect my children from a psychologically abusive parent, it is horribly frustrating that the long term treating child psychologist can't testify on the kids' behalf as to their current mental state, diagnosis and prognosis. In order to prove something like emotional abuse, the child would have to testify which is in no one's best interest. Proving abuse to DCSE amounts to blood or broken bones - which is of no use when discussing emotional abuse. Without the child or the psychologist testifying, a hearing turns into he said/she said. Unfortunately, that leaves the parent trying to protect the child helpless. Moreover, it leaves the child unprotected.

There are many children's psychologists that are fighting this bill because they want to protect their patient. I don't think a PARENT'S therapist should ever have to testify and I think that is the therapy this law as originally trying to protect. Let the child's psychologist protect his/her patient and the judge can assess the credibility of the testimony.

At some point, the rights and protection of the children have to outweight that of the parent. Best interest of the child needs to be paramount to the court. Please read legal article referings "Right of Privilage for Mommy Dearest". Her argument is far more eloquent than mine.

Elizabeth writes:

typo - I meant that many psychologists are fighting FOR this bill and against the original law. Just wanted to clarify.

Elizabeth writes:

Now that I have read the full dialog here, I wanted to be clear on some issues. First, this statute doesn't just protect the parent in their therapy but no child psychologist is allowed to testify with respect to a parent of that child, even if that psychologist has never treated that parent. It handicaps the children psychologists from protecting their patients.

Further, many judges and psychologists support the repeal of this law, not just trial lawyers. I have several friends who are part of professional organizations that have protested this statute.

Katherine Dewart writes in George Mason Law Review, "The policy reasons underlying the psychotherapist-patient privilege
emphasize the importance of preserving confidentiality in certain relationships,
even at the expense of the loss of valuable information to the court in
a dispute.58 In contrast, the policy considerations underlying the best interest
of the child standard, which is the standard governing custody disputes
in almost every jurisdiction in the United States,59 emphasize the importance
of the court having all of the relevant information before it, even at
the expense of a loss of privacy for the parents. The interest of the parents
is secondary to the interests of the child...By enacting this poorly drafted statute, the General Assembly
seriously impairs the court’s ability to determine the best interests of
the child, which the legislature itself has made the guiding and primary
factor in custody disputes. In so doing, the General Assembly favors the
rights of parents over the best interests of the child."

I hope this helps clarify the actual details of this statute.

Alison Hymes writes:

How would a child's therapist be able to testify ethically about a parent they have never seen in treatment? Psychiatrists are not supposed to diagnose people they have never treated under their ethical guidelines.
But yes, it is the part about therapists being forced to testify about their own adult patients that concerns me greatly. People will have to choose between treatment and custody because, yes, there is overwhelming prejudice against anyone with a psychiatric diagnosis in the general population including and not excluding judges and attorneys. Not on point, but prejudice is one of the major reasons people with psychiatric diagnoses so often don't get good representation in commitment proceedings. For more on this from an attorney in practice see

Richard: Please cease posting? Yeah, no assumption of ablist privilege there, no, none at all. Right.

Alison Hymes writes:

Elizabeth, I forgot to say, I am sorry about your situation.

Richard writes:


I think you might like to read this as well:

Alison Hymes writes:

Elizabeth, don't know if these provisions are helpful to you or not, but here they are:
C. Nothing in this section shall supercede the provisions of § 63.2-1509 of the Code of Virginia related to the required reporting of suspicion of an abused or neglected child.

D. This section shall not apply to mental health care providers who have conducted or are conducting an independent mental health evaluation pursuant to a court order.

Elizabeth writes:

Thanks for your response Alison. But, unfortunately, due to the Schwartz Ruling, a therapist cannot even testify as to the psychological state of their minor patient - i.e. scared, traumatized, disassociating, alienated, etc. In fact, even when my chld was struck by the parent in question, since there was no blood or broken bones, it was not enough to get action from DCSE or the courts. I understand your position in theory, but in practice, this statute is being applied so that the psychologist cannot testify about anything regarding the mental state of the child - because if it reflects poorly upon a parent, then it cannot be said. Even if the psychologist is not testifying to the truth of why the child is scared, the therapist cannot even say the child is scared, or threatened or terrified to the point that they will do anything to escape. If the child wants to testify on his/her own behalf, the psychologist cannot even testify that this as done of the child's own free will and that the child has the judgement and maturity to represent his or her own views. Literally, the therapist can't say a thing about the custody case. Even, "My assessment is that the child wants to stay in his/her current home" is considered "against" the other parent and is not admissible. The ramifications of this statute are more widespread than people considered when it was written. Right now, the custodial parent can't testify really because it is hearsay or argumentative, the child can't testify because we all know that it is not a good experience for the child and is frowned upon from the court. The pscyhologist can't testify because of this statute. So, where is the voice of the child? What happens when the child, who has NO OPTIONS to be heard, begins to take matters into his/her own hands? Worse, what if the parent does?
Having dealt with a beating that didn't leave marks, psychological abuse that leaves my child sobbing for hours upon her return, the fits of terror when she has to leave and real world experience where this statute has been applied in the court, I will tell you that my child goes to an abusive situation twice monthly and comes back traumatized - and I cannot stop it.
I know the statute you quoted, but without evidence of blood or broken bones, the courts and DCSE are powerless to stop some forms of abuse.
That is why I fully support repealing the current statute. If the intent was for a parent's therapist to not be force to testify against the parent, that is fine. But, then, write the statute properly to reflect that concern and leave the kids' therapists and other professionals out of it.

Richard, thank you for the link. I will print it and read it. I appreciated your insights as well.
Thank you for your sympathies. What I need is to better be able to protect my child.

Alison Hymes writes:

It does seem as if the statute was poorly written or interpreted in a way it wasn't originally intended. It would have been better to rewrite it than repeal it entirely though in terms of further harmful unintended consequences. And it seems that we need better child protective services if they won't intervene without blood or broken bones, we need more CAC's as we have in C'ville. I don't think most of the state has those.

There were ways to fix this without making things worse, I think one thing may have been fixed and others made worse by the complete repeal.

Richard writes:

04/02/08 Governor: Approved by Governor-Chapter 809 (effective 7/1/08)