Saturday, July 30, 2005

Contempt finding in custody matter based on mental health provider's testimony without consent reversed

In Schwartz v. Schwartz, the Virginia Court of Appeals in an opinion by Judge Elder reversed the contempt citation and attorneys' fees award against the appellant, where the appeals court found that the contempt finding was based primarily on testimony from a mental health provider in violation of Va. Code § 20-124.3:1.

The Court explained:

"In 2002, however, the General Assembly passed new legislation specifically limiting the admissibility of mental health records in child custody and visitation proceedings,"

and concluded -

"We agree with mother and hold that, in this case 'in which custody or visitation of a minor child is at issue pursuant to § 20-124.2,”3 the trial court erroneously admitted testimony 'concerning a parent' that constituted 'information obtained during . . . therapy.'"

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