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The latest on therapist testimony in domestic cases

Whether therapist testimony can come into a domestic relations court case – an issue that has pitted lawyers against therapists – appears to be settled enough to allow the Virginia Court of Appeals to shuttle decisions on the subject into its “Unpublished Opinion” file.

Just last December, the appellate court said in a 2-1 decision in Rice v. Rice that no testimony from a therapist can come in without the consent of a parent if the testimony would be adverse to the parent’s legal position. More recently, the family law bar tried to get the Virginia General Assembly to repeal Va. Code § 20-124.3:1, the 2002 statute that generally bars therapist testimony in custody disputes. That effort died in committee.

Earlier this week, a court of appeals panel released an unpublished opinion in Shoemaker v. Karau, affirming a Fairfax Circuit Court decision that excluded testimony from three therapists called by husband to rebut testimony from the wife: the mother’s therapist, the child’s therapist, and a communications therapist for the couple.

In a footnote, the appellate panel referred to legislative inaction on the statute, and treated the Rice decision as settled law.

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