(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Argued December 2, 1996 -- Decided July 10, 1997

STEIN, J., writing for a unanimous Court.

    In this appeal, the Court addresses whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.

    John and Mary Kinsella were married in 1977 and had two children during the marriage. In January 1992, John filed for divorce on the ground of Mary's extreme cruelty. John sought dissolution of the marriage, custody of the children, and equitable distribution of the marital property. Mary filed an answer and counterclaim, denying extreme cruelty on her part. She alleged extreme cruelty by John, claiming that John had undergone a change of character because of alcohol and drug abuse. Mary also claimed that John had physically abused her and the children. Mary sought dissolution of the marriage, equitable distribution of the marital property, custody of the children, alimony and child support. Mary also sought compensatory and punitive damages for the injuries she sustained as set forth in her counterclaim.

    During the proceedings, Mary retained physical custody of the children. In the fall of 1992, the court appointed a psychologist, Dr. Montgomery, to determine if John could have overnight visitation with the children. In her July 7, 1993, report recommending that John be permitted overnight visitation, Dr. Montgomery included summaries of her interviews with John, Mary and the children. Dr. Montgomery had also consulted with Madelyn S. Milchman, Ph.D., who briefly treated the Kinsella's as a couple beginning in 1988 and who continued to treat John on an individual basis. Dr. Montgomery had also reviewed a court-ordered addiction evaluation of John.

    In January 1995, Mary filed an amended answer and counterclaim, wherein she alleged more detailed instances of physical abuse against her and the children. In her counterclaim, Mary sought compensatory and punitive damages, as well as costs and counsel fees, for intentional assault and battery, intentional infliction of emotional distress, and marital tort claims.

    In a cross-motion filed in March 1995, John sought, among other things, an order compelling Mary to sign releases for her medical and psychological records. Although, the court granted that request, at a pre-trial hearing, Mary argued that the court should provide each party with access to all of the other party's psychological records, including the records of Dr. Milchman, John's treating psychologist. Mary sought to review those records because of their relevance to the custody issues and the tort claim based on the battered-women's syndrome. John objected to the release of those records, claiming that they were protected by the physician-patient privilege under New Jersey Rule of Evidence (N.J.R.E.) 505 because Dr. Montgomery's report provided sufficient information on his mental state for purposes of custody and visitation. John further argued that Mary's records were put "in issue" because of her tort claims but that his mental state was not similarly "in issue." The court ordered that each party release their respective psychological records to opposing counsel.

    On leave to appeal granted, the Appellate Division concluded that there were less intrusive means available for Mary to prove her claims of spousal abuse and that N.J.R.E. 505 did not provide an exception

to the privilege in these circumstances. However, the Appellate Division agreed with Mary that, by pleading extreme cruelty as a cause of action in divorce, John had put his own mental condition in issue and, therefore, waived the psychologist-patient privilege. The court limited access to only records contemporaneous with the period during which John alleges that Mary committed acts of extreme cruelty. The court required that the records first be reviewed by the trial judge in camera for relevancy before release to Mary or her attorney.

    The Supreme Court granted motions for leave to appeal filed by John and Mary. John appeals so much of the Appellate Division decision that holds that the psychologist-patient privilege is waived when a party sues for divorce based on extreme cruelty. Mary appeals so much of the decision that holds that psychological records cannot be obtained for use in determination of custody issues and also contests denial of access to such records for purposes of her marital tort claims.

HELD:    Mary Kinsella failed to make a prima facie case for piercing the psychologist-patient privilege sufficient to allow disclosure of John Kinsella's psychotherapy records either for purposes of proof of her marital tort claims or for defending the extreme cruelty claim. However, on the issue of custody, the trial court, on reconsideration, must balance the need for the records with the public policy underlying the privilege and determine whether, under the Kozlov test, the privilege should be pierced to compel disclosure of the records.

1. Privileges are construed narrowly in favor of admitting relevant evidence. The Legislature based the psychologist-patient privilege on the attorney-client privilege. Under the three-part test established in In re Kozlov, in order to pierce the attorney-client privilege: 1) there must be a legitimate need for the evidence; 2) the evidence must be relevant and material to the issue before the court; and 3) by a fair preponderance of the evidence, the party must show that the information cannot be secured through any less intrusive source. (pp. 14-22)

2. There is an implicit waiver of the attorney-client privilege where the plaintiff has placed "in issue" a communication that relates directly to the claim in controversy. In New Jersey, courts rely on the Kozlov three-part test to limit the waiver in scope to that which is necessary to serve the public interest according to the facts of the case. Where the party seeking disclosure makes a prima facie case for waiver, the court should review the evidence in camera before releasing it to ensure the privilege is pierced only to the extent necessary. New Jersey courts confronting the issue of the psychologist-patient privilege consistently apply these same principles developed in the context of the attorney-client privilege. (pp. 22-28)

3. The Court need not determine whether an exception exists to the psychologist-patient privilege for communications made to the therapist at a time when the therapist was jointly employed by both parties because the communications at issue are protected by the marriage and family therapist privilege, N.J.R.E. 510. Under that rule, one party may not force disclosure of communications made by another party at a time when both parties were engaged in joint therapy. (pp.28-30)

4. When no statutory or other traditional exceptions to the psychologist-patient privilege apply, the court should not order disclosure of therapy records, even for in camera review, without a prima facie showing that the psychologist-patient privilege should be pierced under Kozlov's three-part test. Mary fails to satisfy the third-prong of the test because evidence for proving allegations of spousal abuse is available from other sources. Therefore, Mary has not made a prima facie case for piercing the privilege sufficient to allow disclosure for the marital tort claims. (pp. 30-33)

5. Based on the elements of proof required by the cause of action for extreme cruelty, and the function of that cause of action in New Jersey divorce law, specifically the subjective and liberal standard for proving extreme cruelty, piercing the psychologist-patient privilege should be permitted only rarely in order to enable a party to defend that cause of action. John's factual allegations have not created a need for the evidence at

issue; the evidence sought is not relevant or material to any legal issue before the court; and less intrusive means are available for obtaining evidence to defend the extreme cruelty claim; therefore, Mary has not made a prima facie showing that the privilege should be pierced for the purpose of defending the divorce action. (pp. 33-45)

6. In custody disputes, the primary concern is the best interests of the child. In respect of therapy records, courts must strike a balance between the need to protect the well-being of children and the compelling public policy of facilitating the treatment of parents' psychological or emotional problems. Thus, the first source of information about the parents' mental health should be independent experts appointed by the court or hired by the parties for the purpose of litigation. Only when the court perceives, after consideration of all the evidence, that the information gained from independent analysis is inadequate, should the court consider piercing the psychologist-patient privilege to compel disclosure of prior treatment records to the court and the parties. Before releasing the records, the court should conduct an in camera review, releasing only relevant and material information. (pp. 45-63)

7. The trial court did not properly balance the need for John's therapy records with the public policy underlying the psychologist-patient privilege. On remand, the trial court should reconsider, in accordance with the principles outlined in this opinion, whether the privilege should be pierced to compel release of John's therapy records for the purpose of custody determination. Based on the important public policy behind the psychologist-patient privilege, only in the most compelling circumstances should courts permit that privilege to be pierced. (pp. 63-65)

    Judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the matter is REMANDED to the Family Part for further proceedings consistent with this opinion.

     CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN'S opinion.

SUPREME COURT OF NEW JERSEY
A-69/ 70 September Term 1996

JOHN KINSELLA,

    Plaintiff-Respondent
    and Cross-Appellant,

        v.

MARY KINSELLA,

    Defendant-Appellant
    and Cross-Respondent.

        Argued December 2, 1996 -- Decided July 10, 1997

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 287 N.J. Super. 305 (1996).

Cary B. Cheifetz and Michael C. Caulfield argued the cause for appellant and cross-respondent (Skoloff & Wolfe and Kummer, Knox, Naughton & Hansbury, attorneys; Mr. Cheifetz, Beatrice E. Kandell and Phyllis S. Klein, on the briefs).

Christopher P. Gengaro and Toby Solomon argued the cause for respondent and cross-appellant (Lentz & Gengaro and Mr. Solomon, attorneys; Mr. Gengaro, Mr. Solomon and David W. Lentz, of counsel and on the brief).

        The opinion of the Court was delivered by
STEIN, J.
    This appeal presents the question whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context

of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.

    Plaintiff John Kinsella and defendant Mary Kinsella married in May 1977 in New York City. The couple subsequently moved to Glen Ridge, New Jersey. Two children were born of the marriage: John, Jr. on April 6, 1982, and Anastasia on September 14, 1985.
    In January 1992, plaintiff filed for divorce on the ground of his wife's extreme cruelty, dating from approximately 1986. Specifically, plaintiff alleged that defendant had been verbally abusive, that she would "fly into a rage for no reason," and that she had intentionally involved the children in the couple's arguments. Plaintiff also alleged that defendant had spent excessive time with a male friend and that she had devoted too much time to her interior design business. Further, plaintiff alleged that defendant had alienated family and friends by her "bizarre behavior." Plaintiff sought dissolution of the marriage, custody of the children, and equitable distribution of the marital property.
    In March 1992, defendant filed an answer and counterclaim, denying extreme cruelty on her part and alleging extreme cruelty on the part of the plaintiff, commencing with the birth of the

couple's son in 1982. Defendant alleged that plaintiff had undergone a change of character due to heavy use of alcohol and illegal drugs. She alleged a pattern of belittling and humiliating behavior by plaintiff towards her, both at home and in public. Defendant further alleged that plaintiff had verbally and physically abused her and the children on a number of occasions. One such episode allegedly had resulted in a miscarriage. On another occasion, allegedly resulting in defendant's hospitalization, she asserted that the couple's six-year-old son had intervened by hitting plaintiff with a chair, allowing defendant to flee and call the police. Defendant sought dissolution of the marriage, custody of the children, equitable distribution of the marital property, alimony and child support, as well as court costs and counsel fees. Defendant also sought compensatory and punitive damages for injuries set forth in the counterclaim.
    The parties proceeded with discovery and with settlement negotiations. Defendant retained physical custody of the children. In the fall of 1992, the designated motion judge appointed a psychologist, Sharon Ryan Montgomery, Psy.D., to assist in determining whether plaintiff should have overnight visitation with the children. Dr. Montgomery's report was completed on July 7, 1993. She is expected to testify at trial.
    Before rendering her fourteen-page report, Dr. Montgomery had met four times with each parent individually, once with each child individually, and once with each parent together with the

children. Her report included summaries of these interviews. Dr. Montgomery had also consulted with Madelyn S. Milchman, Ph.D., from whom the Kinsellas briefly had received therapy as a couple beginning in 1988 and from whom plaintiff continued to receive therapy on an individual basis. Dr. Montgomery did not include notes from that consultation in her report. In addition, Dr. Montgomery apparently had reviewed a court-ordered addiction evaluation of plaintiff. Dr. Montgomery had not consulted with defendant's therapist, with John Jr.'s therapist, or with the family therapist treating the children and defendant.
    According to Dr. Montgomery's report, defendant reported to Dr. Montgomery that plaintiff had had a drinking problem and had been physically abusive to both her and the children. She stated that the children were very fearful of their father and did not want to visit with him overnight. Defendant wanted plaintiff to have only very limited visitation. She also stated that she did not want plaintiff to have input into decisions regarding the children's welfare because she did not think that he and she could agree.
    Plaintiff, on the other hand, admitted to Dr. Montgomery that he had been volatile and abusive with his wife at times, but claimed that she exaggerated the behavior. Plaintiff also admitted use of cocaine until November 1991 and excessive use of alcohol, but stated that his alcohol use diminished after he had decided to leave the marriage and that he currently did not suffer from an alcohol problem. That conclusion was confirmed to

Dr. Montgomery by the addiction evaluation. Plaintiff denied physical abuse of his children, although he acknowledged that the children were somewhat frightened of him. He stated that he wanted regular, including overnight, visitation.
    The children indicated to Dr. Montgomery that their father had hit them in the past and that they had witnessed their father being physically abusive to their mother. John Jr. stated that he wanted his father to refrain from drinking during visitation. He also was aware of his father's prior drug use. The psychologist's impression, however, was that the children were not as frightened of their father as their mother had described. She felt that some of John Jr.'s statements sounded rehearsed.
    Dr. Montgomery recommended overnight visitation on alternate weekends and mid-week dinners for plaintiff with his children. She concluded that plaintiff did not appear to be a compulsive user of drugs or alcohol at that time. However, she recommended continued urine screening on a sporadic basis for the next year and that plaintiff refrain from drinking during visitation. Dr. Montgomery recommended continued psychotherapy for both plaintiff and defendant. Dr. Montgomery also recommended that the court appoint a mediator/monitor to work with the Kinsellas to develop a co-parenting plan, supervise visitation and address further issues as they arose.
    In July 1994, the court appointed Jeffrey P. Weinstein, Esq., to "work out a custody and visitation agreement with the parties." On October 18, 1994, Mr. Weinstein submitted his

report, stating that he was unable to work out a custody agreement but proffering recommendations to the court. He is also expected to testify at trial.
    In his report, Mr. Weinstein stated that he had read a letter to the court from Dr. Montgomery dated June 22, 1994. In addition, he had read a July 15, 1994, report by James G. Garofallou, Ph.D., from whom John Jr. had been receiving therapy. Mr. Weinstein had met with the Kinsella family and with the parents' attorneys. He had also spoken on the telephone to Dr. Montgomery, Dr. Garofallou, Dr. Milchman and defendant's therapist, Dr. Oosting.
    Mr. Weinstein reported that he believed that defendant was manipulating the children, especially John Jr., to give the impression that their father was more dangerous than he really was. Nevertheless, he reported that the children had indicated that their father hit them in the past and continued to yell at them, and that they knew about his drug use. Mr. Weinstein stated that the treating therapists for the parents had both been "real advocates for the positions of their clients," and that both had believed that their clients were good parents. Dr. Garofallou had stated that he thought John Jr. was truly afraid of his father, but that because John Jr. would not allow Dr. Garofallou to meet his father Dr. Garofallou had no independent opinion about plaintiff. Dr. Garofallou agreed with Mr. Weinstein that John Jr. might have been repeating to Mr. Weinstein what he thought his mother wanted him to say. Mr.

Weinstein reported: "I believe that John Jr. may be truly fearful of his father, but I do not believe that his father is the cause of the fear."
    Mr. Weinstein recommended joint legal custody, with defendant having primary physical custody and plaintiff having alternate weekend visitation, plus one week night per week, and three weeks of vacation per year, plus alternate holidays. Mr. Weinstein reported that defendant would not agree to joint legal custody. The parties apparently did not agree on a visitation schedule either. Defendant also wanted plaintiff to submit to drug and alcohol testing, to which plaintiff suggested he might agree.
    On January 15, 1995, defendant, who had obtained new counsel, filed an amended answer and counterclaim. The first count of the counterclaim again sought divorce on the ground of extreme cruelty, but contained more detailed factual allegations than the original counterclaim. Defendant alleged that plaintiff's physical and sexual abuse of her had dated from the beginning of the marriage in 1977, and that plaintiff had had a severe drinking problem from that time. Defendant also alleged that plaintiff had begun using cocaine in 1985.     
    Defendant alleged many specific instances of physical abuse against her and her children. She alleged that plaintiff had once severely injured her arm by twisting it in an attempt to make her drop her baby. She alleged that even before their son was one year old, plaintiff had frequently struck him and that,

throughout his residence in the home, plaintiff had continued to kick and punch the child. She alleged that plaintiff had once sat on the couple's five-year-old daughter to make her stop crying. Other instances of alleged abuse against defendant included striking, dragging, choking, kicking and cutting her, throwing objects at her, and attempting to run her over with a car. Defendant also alleged that plaintiff had tortured her with razor blades and a leather whip and that he had threatened both her and her son with knives and baseball bats. She alleged that plaintiff had refused to help her obtain critical medical assistance when she was suffering from a dangerous kidney infection related to her diabetic condition, and that he had attempted to force her to ingest overdoses of her medications. Defendant stated that she had lived in an attitude of constant fear and had contemplated suicide. Defendant alleged that plaintiff had threatened to kill her and had tried to convince her to kill herself.
    Defendant claimed that she had been hospitalized in connection with some of those incidents, had required several surgeries, and continued to suffer medical consequences. She also claimed to have fled on one occasion to a Rhode Island hotel with her children. Defendant further alleged that plaintiff had been arrested in connection with incidents of abuse and had been the subject of a restraining order.
    Defendant alleged that plaintiff's threats and abuse had continued after the separation. She alleged that, during

visitation, plaintiff had once tied a rope around John Jr.'s neck and that Anastasia had returned from visitation with suspicious bruises. She also alleged that plaintiff had entered the marital home and broken the third floor windows. Additionally, defendant alleged that plaintiff had hired men to stalk and terrorize her.     On the first count, defendant sought dissolution of the marriage, custody of the children, alimony, child support, equitable distribution of the marital property, and court costs and counsel fees. The other counts of the counterclaim sought compensatory and punitive damages, as well as costs and counsel fees, for intentional assault and battery, intentional infliction of emotional distress, and marital tort claims. Defendant also submitted jury demands on those counts.
    The parties proceeded towards trial. In a cross-motion filed in March 1995, plaintiff sought, inter alia, an order compelling defendant to sign releases for her medical and psychological records. The court granted that aspect of the cross-motion, but ordered the parties to agree on a form of order. No agreement was reached before a subsequent pre-trial hearing on May 12, 1995. At that hearing, defendant contended that the order should provide for each party to have access to all of the other party's psychological records, including the records of plaintiff's treating psychologist, Dr. Milchman. Plaintiff objected to release of those records. Defendant argued that she sought the records on the issue of legal custody and because of "the issue . . . of anger and fault that is pervading

this case." Defendant also stated that she disagreed with the conclusions of the court-appointed psychologist, Dr. Montgomery. Plaintiff claimed that his psychological records were protected by the psychologist-patient privilege under Rule 505 of the Rules of Evidence. He also represented that he did not intend to call Dr. Milchman as a witness at trial.
    The trial court concluded that its earlier decision had not addressed plaintiff's records and therefore issued an order for release of defendant's records only. That order has not been appealed. The court gave the parties additional time to brief the question whether plaintiff also should be required to release his psychological records.
    In her letter brief, defendant stated that she believed that plaintiff had revealed to his therapist a course of abusive conduct towards defendant. Defendant represented that she sought to review the therapist's records because of their relevance to the custody issues in the case as well as to the defendant's tort claim based on battered women's syndrome. Plaintiff objected to release of the records, claiming that physical custody was not an issue in the case, only joint legal custody, and that, in any event, Dr. Montgomery's report provided sufficient information on the mental state of plaintiff for purposes of the custody and visitation issues. Plaintiff further argued that, although defendant's psychological records were put at issue by her tort claims alleging her own psychological damages, plaintiff's mental state was not similarly at issue. Plaintiff asserted that,

therefore, defendant could not overcome the psychologist-patient privilege to obtain his records.
    The Family Part ordered each party to sign authorizations releasing their respective psychological records to opposing counsel. The court further ordered that the records might be reviewed by the parties themselves, but not released to them. In a letter to the parties dated May 23, 1995, the court explained:
            The Court feels that the release of the psychological records for both parties may be a consideration as to the question of the `dangerousness' of this case and the unpredictability of future actions in any case.

            It is inherent that the Court be mindful of the effect which domestic violence or it's [sic] allegations has not only on past, but future relationships with the children. The Court believes that the mental health records of both parties should be available for review by the Court at the time of trial. The history or lack of history of abusive behavior should be know [sic] now in determining future custody arrangements.

    The Appellate Division granted plaintiff's motion for leave to appeal from the interlocutory order. In his Appellate Division brief, plaintiff again argued that his treatment records were privileged and that the information sought was available from less intrusive sources. He attached the certification of his psychologist, Dr. Milchman, who stated:
        In my professional opinion, forcing me to produce my treatment notes and records, and possibly testify regarding my therapy sessions with Mr. Kinsella, will cause Mr. Kinsella to suffer severe anxiety and humiliation. Additionally, I am extremely concerned that such disclosures could damage my relationship with Mr. Kinsella, causing

regression in his progress and undermine the therapeutic process. I am specifically concerned because if the substance of our conversations are [sic] revealed and used in the divorce proceeding, Mr. Kinsella will likely be far more cautious and far less candid with me in future therapy sessions out of fear that whatever he says may be revealed to the outside world and used against him.

    In defendant's Appellate Division brief, she again argued that the records were needed in order for the court to determine custody and in order for her to prove the marital tort case. Defendant also argued that Rule 505 contains an exception for actions "to recover damages on account of conduct of the psychologist's client which constitutes a crime." In addition, defendant raised for the first time the contention that plaintiff put his mental state at issue by pleading extreme cruelty as the ground for divorce.
    In its opinion, the Appellate Division rejected defendant's contention that the psychologist-patient privilege did not prevent disclosure of psychological records in the context of the custody or visitation dispute because the court must determine the "best interests of the child," noting that the welfare of the child is at stake in every such case. 287 N.J. Super. 305, 311-12 (1996). The Appellate Division stated that there were less intrusive means available for defendant to prove her claims of spousal abuse. Id. at 315-16. The Appellate Division also rejected defendant's interpretation of Rule 505 as providing an exception to the privilege in these circumstances. Id. at 316.

    However, the Appellate Division agreed with defendant that, by pleading extreme cruelty as a cause of action in divorce, plaintiff had put his own mental condition at issue and therefore waived the psychologist-patient privilege. Id. at 317. Satisfying the statutory definition of extreme cruelty, the panel reasoned, "may require proof of the effect which the defendant's conduct has had on the plaintiff's state of mind." Ibid. Therefore, the Appellate Division held that defendant should have access to plaintiff's psychological records in order to answer plaintiff's allegations of extreme cruelty. Because plaintiff's waiver was limited to those claims, the Appellate Division limited the access "to records approximately contemporaneous with the period during which [plaintiff] alleges his wife committed the acts of extreme cruelty upon which he relies, with some latitude, however, to explore whether the psychological condition which he attributes to acts of extreme cruelty existed prior to their alleged commission." Ibid. Moreover, the Appellate Division required that the records in question first be reviewed in camera by the trial judge for relevancy before release to defendant or defense counsel. Ibid. The Appellate Division also stated that the trial court should place reasonable conditions on the use or further release of the records. Ibid.
    Both parties filed motions for leave to appeal, which this Court granted. See 145 N.J. 369 (1996). The plaintiff appeals so much of the decision that holds that the psychologist-patient privilege is waived when a party sues for divorce based on

extreme cruelty. Defendant appeals so much of the decision that holds that psychological records cannot be obtained for use in determination of custody issues and also contests denial of access to such records for purposes of her marital tort claim.

    A privilege against compelled disclosure of relevant evidence "runs counter to the fundamental theory of our judicial system that the fullest disclosure of the facts will best lead to the truth." In re Selser, 15 N.J. 393, 405 (1954). For that reason, in general, privileges are construed narrowly in favor of admitting relevant evidence. State v. Schreiber, 122 N.J. 579, 582-83 (1991). Nevertheless, the common law has recognized privileges against disclosure for certain types of communications, most notably those between attorney and client and between husband and wife; similarly, privilege traditionally has been extended by common law or statute to communications between government and informer, and between fellow jurors. See 8 Wigmore on Evidence § 2197, at 113-14 (McNaughton rev. 1961); Developments in the Law, Privileged Communications, 98 Harv. L. Rev. 1450, 1456, 1592 (1985). Those communications privileges are generally considered to be premised on the following conditions: (1) the privileged communications originate in confidence; (2) confidentiality is an essential element of the proper relationship between the parties; (3) the relationship is

one that the community wishes to encourage; and (4) the injury caused by damaging the relationship through disclosure of the communications would be greater than the benefit gained. See Hague v. Williams 37 N.J. 328, 335 (1962); 8 Wigmore, supra, § 2285, at 527.
    The privilege for communications between a patient and her psychotherapist is a more recent development in the law, but has been statutorily recognized in some form by all fifty states and the District of Columbia. See Jaffee v. Redmond, 518 U.S. ___, ___ & n.11, 116 S. Ct. 1923, 1930 & n.11, 135 L. Ed.2d 337, 346 & n.11 (1996) (listing statutes). The privilege has been defended on the basis of both constitutional privacy interests and its advancement of the patient-therapist relationship. See Lora v. Board of Education, 74 F.R.D. 565, 569-76 (E.D.N.Y. 1977); In re Lifschutz, 467 P.2d 557, 567-68 (Cal. 1970); In re "B", 394 A.2d 419, 423-26 (Pa. 1978); 1 McCormick on Evidence § 72, at 270-71 (Strong ed., 4th ed. 1992); Developments in the Law, Privileged Communications, supra, 98 Harv. L. Rev. at 1542-51. On the one hand, the psychotherapist-patient privilege protects the individual from public revelation of innermost thoughts and feelings that were never meant to be heard beyond the walls of the therapist's office. On the other hand, the privilege makes possible open and therefore productive relationships between therapists and patients, thereby advancing the public good accomplished when individuals are able to seek effective mental health counseling and treatment.

    Recently, the United States Supreme Court held that a psychotherapist-patient privilege exists under Rule 501 of the Federal Rules of Evidence, which "authorizes federal courts to define new privileges by interpreting `common law principles . . . in the light of reason and experience.'" Jaffee, supra, 518 U.S. at ___, 116 S. Ct. at 1927, 135 L. Ed. 2d at 343-44 (quoting Fed. R. Evid. 501). The Court based its conclusion in part on its perception that confidentiality "is a sine qua non for successful psychiatric treatment." Id. at ___, 116 S. Ct. at 1928-29, 135 L. Ed. 2d at 345 (quoting Advisory Committee's Notes to Proposed Rules, 56 F.R.D. 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960))). The Court stated:
        Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.    

        [Id. at ___, 116 S. Ct. at 1928, 135 L. Ed. 2d at 345.]

The Court found that the privilege afforded to psychotherapist-patient communications served the public interest "by facilitating the provision of appropriate treatment for

individuals suffering the effects of a mental or emotional problem." Id. at ___, 116 S. Ct. at 1929, 135 L. Ed. 2d at 345.
    In contrast, the Court found that only a modest benefit would be achieved by a rule favoring disclosure because the very communications to which litigants typically seek access would thereby be chilled. Id. at ___, 116 S. Ct. at 1929, 135 L. Ed. 2d at 346. Patients are aware of the privilege and its limits because psychotherapists generally believe themselves to be ethically bound at the outset of the therapy relationship to inform their patients of the limits of confidentiality. Id. at ___ n.12, 116 S. Ct. 1930 n.12, 135 L. Ed. 2d at 347 n.12 (citing American Psychological Association, Ethical Principles of Psychologists and Code of Conduct Standard 5.01 (Dec. 1992), National Federation of Societies for Clinical Social Work, Code of Ethics V(a) (May 1988); American Counseling Association, Code of Ethics and Standards of Practice A.3.a (eff. July 1995)); see also American Psychiatric Association, Task Force Report 31, Disclosure of Psychiatric Treatment Records in Child Custody Disputes 4 (1991) (Task Force Report); National Association of Social Workers, Code of Ethics 1.07(e) (eff. Jan. 1997). Therefore, in situations in which the patient knows that litigation is possible, the patient might well choose to limit what she says to her therapist or not seek therapy at all. Moreover, therapists who are aware of potential litigation may be reluctant to take or preserve notes. See Kathleen A. Hogan, A

Look at the Psychotherapist-Patient Privilege, 14 Fam. Advoc. 31, 35 (1991).
    The Supreme Court endorsed a strong version of the psychotherapist-patient privilege that would not be contingent on a case-by-case balancing of the patient's interest in privacy with the evidentiary need for disclosure. The Court stated:
        [I]f the purpose of the privilege is to be served, the participants in the confidential conversation `must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.'

        [Jaffe, supra, 518 U.S. at ___, 116 S. Ct. at 1932, 135 L. Ed. 2d at 349 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393, 101 S. Ct. 677, 684, 66 L. Ed.2d 584, 593 (1981)).]

    New Jersey's psychologist-patient privilege is delineated in Rule 505 of the Rules of Evidence, which incorporates the relevant section of the Practicing Psychology Licensing Act of 1966. See L. 1966, c. 282, §§ 1-32 (codified at N.J.S.A. 45:14B-28). The Act was amended in 1981 to include the communications of "couples, families [and] groups" within the privilege. See L. 1981, c. 303, § 1. A 1994 amendment added specific exceptions to the privilege. See L. 1994, c. 134, § 11. Rule 505 currently provides:

            The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
            There is no privilege under this section for any communication: (a) upon an issue of the client's condition in an action to commit the client or otherwise place the client under the control of another or others because of alleged mental incompetence, or in an action in which the client seeks to establish his competence or in an action to recover damages on account of conduct of the client which constitutes a crime; or (b) upon an issue as to the validity of a document as a will of the client; or (c) upon an issue between parties claiming by testate or intestate succession from a deceased client.

    As the text of the statute indicates, the Legislature chose to model the psychologist-patient privilege on the privilege protecting communications between an attorney and her client.See footnote 1 See Arena v. Saphier, 201 N.J. Super. 79, 87 (App. Div. 1985).

The attorney-client privilege, which has long existed in New Jersey common law, see In re Advisory Opinion No. 544, 103 N.J. 399, 405-06 (1986); Fellerman v. Bradley, 99 N.J. 493, 498 (1985), was legislatively enacted in 1960, see L. 1960, c. 52, § 20 (codified at N.J.S.A. 2A:84A-20). It is incorporated in Rule 504 (formerly Rule 26) of the Rules of Evidence. Like the psychologist-patient privilege, the attorney-client privilege can be explained by a functional rationale -- "the judicial recognition that the public is well served by sound legal counsel based on full and candid communication between attorneys and their clients." Fellerman, supra, 99 N.J. at 502.
    The attorney-client privilege is not absolute. "[C]onsiderations of public policy and concern for proper judicial administration have led the legislature and the courts to fashion limited exceptions to the privilege. These exceptions attempt to limit the privilege to the purposes for which it exists." Ibid. An example is the exception for communications in the aid of a crime or fraud, which existed at common law and is also explicitly provided for in the statute. See id. at 503; N.J.R.E. 504(2)(a); see also In re Nackson, 114 N.J. 527, 532-37 (1989) (interpreting "crime or fraud" exception). The "crime or fraud" exception corresponds to an affirmative duty on the part of the attorney to disclose certain confidential communications in specific situations. See In re Abrams, 385 F. Supp. 1210, 1211-12 (D.N.J. 1974), rev'd on other grounds 521 F.2d 1094 (3d. Cir. 1975); R.P.C. 1.6.

    In some circumstances, the attorney-client privilege may be overridden to compel disclosure, even in the absence of an explicit statutory or traditional categorical exception. However, as this Court stated in In re Kozlov, 79 N.J. 232, 243-44 (1979), three "foundations" must be established by the party seeking to pierce the privilege: (1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source. In Kozlov, this Court reversed the contempt conviction of an attorney for refusing to reveal the identity of a client who had given him information regarding a biased juror in an unrelated case, holding that the criteria for piercing the attorney-client privilege were not satisfied because the ultimate information sought -- evidence about whether the juror was biased -- was available from less intrusive sources. Kozlov, supra, 79 N.J. at 244; see also Nackson, supra, 114 N.J. at 537-39 (holding that trial court should have balanced interests under Kozlov to determine whether attorney was required to disclose fugitive client's location).
    Cases applying Kozlov have generally upheld the attorney-client privilege. See Roe v. Roe, 253 N.J. Super. 418, 433 (App. Div. 1992) (upholding attorney-client privilege to prevent discovery of diary kept on advice of counsel by plaintiff in action under Prevention of Domestic Violence Act, because

defendant had made no showing that he could not obtain information from less intrusive source); In re Grand Jury Subpoenas, 241 N.J. Super. 18, 32 (App. Div. 1989) (upholding privilege to prevent disclosure of communications between Sussex County Board of Freeholders and its attorneys, on basis that grand jury had not exhausted other means of obtaining information); In re Maraziti, 233 N.J. Super. 488, 498-500 (App. Div. 1989) (upholding attorney-client privilege to prevent disclosure of communications between minors and appointed law guardian sought by defendant father charged with sexual abuse, because alternative information source regarding children's credibility available); In re State Comm'n of Investigation, 226 N.J. Super. 461, 464 (App. Div.) (upholding attorney-client privilege to prevent disclosure of communications between New Jersey School Boards Association and its attorneys), certif. denied, 113 N.J. 382 (1988). But see Leonen v. Johns-Manville, 135 F.R.D. 94 (D.N.J. 1990) (applying Kozlov and holding that privilege was pierced where documents containing attorney-client communications dating back to 1930s contained information that was no longer available from other sources concerning when manufacturer became aware of dangers of asbestos).
    The typical setting in which the attorney-client privilege has not been sustained under Kozlov is where the party claiming the privilege has implicitly waived it by putting the confidential communications "in issue" in the litigation. Most jurisdictions recognize implicit waiver of the attorney-client

privilege "where the plaintiff has placed in issue a communication which goes to the heart of the claim in controversy." Developments in the Law, Privileged Communications, supra, 98 Harv. L. Rev. at 1637-38; see 81 Am. Jur. 2d Witnesses § 348, at 323 (1992). "In issue" waiver of the attorney-client privilege was addressed by the Appellate Division in United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 563-68 (App. Div. 1984). In that case, a bank sued for rescission of a settlement agreement, claiming that a defaulting borrower had misrepresented his available assets during settlement negotiations. Id. at 558-59. The borrower sought access to communications between the bank and its attorneys, apparently in order to rebut the bank's assertion that it relied on the borrower's representations. Id. at 559-60. The Appellate Division held that the attorney-client privilege was pierced under the tripartite test in Kozlov: the defendants had a need for the communications, they were relevant and material, and no less intrusive source was adequate. Id. at 565. The Appellate Division concluded by recognizing "the inherent inequity" that would result if the plaintiff were permitted "to use the privilege as a sword rather than a shield," and noting that "[t]he resulting half-truth that would be revealed might well be more disabling than a total distortion." Id. at 567.
    Applying Kozlov, New Jersey courts have declined to treat the "in issue" doctrine as operating automatically based on the cause of action pled. Instead they have used Kozlov's three-part

test to limit the waiver in scope to that which is necessary to serve the "public interest," according to the facts of the case. See In re Envtl. Ins. Actions, 259 N.J. Super. 308, 318-19 (App. Div. 1992) (applying Kozlov and holding that plaintiff in declaratory judgment action against insurers must disclose work-product related to underlying litigation only where defendants showed substantial need and undue hardship); Weingarten v. Weingarten, 234 N.J. Super. 318, 328 (App. Div. 1989) (applying Kozlov and holding that wife waived attorney-client privilege to extent that her communications to her attorney were necessary to her husband's defense of her motion to vacate divorce settlement based on former husband's misrepresentations and to extent that information was not available elsewhere); Blitz v. 970 Realty Assoc., 233 N.J. Super. 29, 37 (App. Div. 1989) (applying Kozlov and holding that plaintiff waived attorney-client privilege with regard to those communications relevant to her reliance on defendant's representations prior to and during real estate contract negotiations); Wolosoff, supra, 196 N.J. Super. at 567 and n.3 (applying Kozlov and holding that plaintiff waived attorney-client privilege with regard to those documents relevant to plaintiff's claim that it had relied on defendant's attorney's representations during settlement negotiations).
    Procedurally, in order to give effect to the attorney-client privilege under Kozlov without allowing the plaintiff to "invoke the privilege to render conclusive its own evaluation of the nature and character of the materials in question," courts may

need to conduct an in camera review of the materials claimed to be privileged. See id. at 568; see also Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 217-18 (App. Div. 1995) (providing for redaction of memorandum before admission), certif. denied, 143 N.J. 326 (1996); Envtl. Ins. Actions, supra, 259 N.J. Super. at 319 (providing for in camera inspection of documents for determination of privileged status); Coyle v. Estate of Simon, 247 N.J. Super. 277, 284 (App. Div. 1991) (approving of in camera review to determine which portions of attorney-client communication must be disclosed because party waived confidentiality when it called expert witness who relied on communications as basis for his opinion testimony).
    This Court has not had the opportunity to address the scope of the psychologist-patient privilege. Other New Jersey courts confronted with the issue, however, consistently have applied the principles developed in the context of the attorney-client privilege. For example, an exception analogous to the "crime or fraud" exception to the attorney-client privilege has been recognized where the psychologist is obligated to make disclosures in order to respond to a "clear and present danger" to the patient or others. See In re Rules Adoption Regarding Inmate-Therapist Confidentiality [N.J.A.C. 10A:16-4.4], 224 N.J. Super. 252, 257-59 (App. Div. 1988) (stating that psychologist-patient privilege yields to obligation of psychologists, under administrative code, ethical rules, and tort law, to disclose information in situations of "clear and imminent danger").

    The "in issue" implicit waiver analysis developed in Wolosoff was expressly applied to the psychologist-patient privilege by the Appellate Division in Arena, supra, 201 N.J. Super. at 88-91, to hold that the plaintiff had effected a limited waiver of the privilege by placing her emotional and mental state in issue in a medical malpractice action based in part on psychological distress. See also Rosegay v. Canter, 187 N.J. Super. 652, 657 (Law Div. 1982) (holding that plaintiff waived psychologist-patient privilege, as well as physician-patient privilege, by claiming damages related to mental condition in dental malpractice action); B.W. Best, Annotation, Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24, 50, 59 (1972) (discussing statutory "patient-litigant" exceptions and judicially-created doctrine of implicit "in issue" waiver). The Arena panel correctly perceived that, just as in the context of attorney-client privilege, waiver of the psychologist-patient privilege by putting communications "in issue" does not function automatically or absolutely based on the pleading of a specific cause of action. See Arena, supra, 201 N.J. Super. at 89. Instead, as in Wolosoff, the Arena panel applied the three-part Kozlov test to determine the scope of implied waiver. See id. at 90. Similarly, as in Wolosoff, the Arena panel held that where the party seeking disclosure makes a prima facie case for waiver, the court should review the evidence

in camera before releasing it, to ensure that the privilege is pierced only to the extent necessary. Id. at 90-91.
    Outside of the "in issue" implicit waiver context, the psychologist-patient privilege has been held to have been pierced in two other situations. First, in criminal proceedings, the psychologist-patient privilege may be required to yield to the defendant's right to exculpatory evidence. In State v. McBride, 213 N.J. Super. 255, 269-271 (App. Div. 1986), the Appellate Division held that the standards articulated in Arena, supra, should have been applied to require limited disclosure of a report prepared by the complainant's psychologist. The panel stated that the trial court should have conducted an in camera review and disclosed any information in the report that would have been relevant to the victim's credibility and to the weight that should be accorded the expert witness's testimony. Id. at 271. The panel went so far as to suggest that "there even may be a Sixth Amendment and State constitutional right requiring the release of the report to defendant following an in camera review by the judge." Id. at 270; see also State v. L.J.P., 270 N.J. Super. 429, 436-43, (App. Div. 1994) (holding that psychologist-patient privilege must yield to right of defendant to impeach critical witness).
    The psychologist-patient privilege also has been held to be pierced in a case requiring the court to conduct a "best-interests-of-the-child" analysis in the context of a child custody dispute. See Fitzgibbon v. Fitzgibbon, 197 N.J. Super.

63, 69 (Ch. Div. 1984). That case, however, involved the results of tests administered by a court-appointed psychological expert who testified at trial, not the therapy records of a treating psychologist. Ibid.

    Preliminarily, we note that plaintiff apparently invokes the psychologist-patient privilege to prevent disclosure of all treatment records kept by Dr. Milchman that pertain to him. Some of the records that defendant seeks are records of therapy sessions that both plaintiff and defendant attended. In fact, defendant asserts that she has concrete knowledge that plaintiff made relevant admissions to his psychologist because she was there and she heard them.
    By providing that the psychologist-patient privilege is coextensive with the attorney-client privilege, Rule 505 of the Rules of Evidence suggests that the privilege may be subject to an exception analogous to the traditional exception to the attorney-client privilege for communications made to an attorney at a time when the attorney was jointly employed by the parties now opposed. See N.J.R.E. 504(2).
    We do not find it necessary to decide whether such an exception to the psychologist-patient privilege exists, however, because we find that, to the extent that the communications at issue in this appeal would come under such an exception, they are

protected by the marriage and family therapist privilege rule, N.J.R.E. 510 (incorporating N.J.S.A. 45:8B-29). The marriage and family therapist privilege extends to communications made to marriage counselors, whether or not the counselors are licensed as such. See Wichansky v. Wichansky, 126 N.J. Super. 156, 158-60 (Ch. Div. 1973). Therefore, we have no difficulty making the factual determination necessary for this holding, even though the claim was not made below.
    Rule 510 provides:
            A communication between a marriage and family therapist and the person or persons in therapy shall be confidential and its secrecy preserved. This privilege shall not be subject to waiver, except where the marriage and family therapist is a party defendant to a civil, criminal or disciplinary action arising from the therapy, in which case, the waiver shall be limited to that action.

Thus, in contrast to the attorney-client privilege rule, the marriage and family therapist privilege rule makes it clear that one party may not force disclosure of communications made by another party at a time when both parties were engaged in common therapy. See Touma v. Touma, 140 N.J. Super. 544, 552-54 (Ch. Div. 1976). The fact that a small part of the communications sought may be covered by the marriage and family therapist privilege instead of the psychologist-patient privilege does not affect our analysis of the other disclosure issues to be resolved in this appeal.

    Defendant originally sought release of plaintiff's psychotherapy records for the purpose of her marital tort claim as well as for the purpose of the custody and visitation issue. Regarding the marital tort claim, defendant argued that she needed the records because, under Giovine v. Giovine, 284 N.J. Super. 3 (App. Div. 1995), she was required to make a preliminary showing of seriousness of injury in order to qualify for a jury trial. In ordering the release, the trial court did not address independently the marital tort claim. See supra at ___ (slip op. at 11). The Appellate Division, on the other hand, held that the jury demand for the marital tort claim did not justify the disclosure of plaintiff's psychotherapy records. 287 N.J. Super. at 316.
    We note preliminarily that this court recently overruled the relevant aspect of Giovine, supra, in Brennan v. Orban, 145 N.J. 282 (1996). Parties are not required to present preliminary proofs of seriousness of injuries in order to qualify for a jury trial on a marital tort issue joined with a divorce action. See id. at 298. Whether a marital tort claim will be afforded a jury trial depends on whether there are dominant issues in the case, such as child welfare, support, and custody issues, that cannot be resolved adequately if the marital tort claim is severed, or whether "society's interest in vindicating a marital tort through the jury process is the dominant interest in the matter." Id. at

301-02. We will therefore consider the question whether the records of plaintiff's therapy are required for the ultimate proofs on the marital tort claims.
    We also note that the Appellate Division correctly rejected defendant's assertion that a statutory exception to the psychologist-patient privilege makes that privilege unavailable to any defendant in an action to recover damages based on an act that constitutes a crime. As the Appellate Division stated, the relevant exception in Rule 505(a) makes the privilege unavailable "upon an issue of the client's condition . . . in an action to recover damages on account of conduct of the client which constitutes a crime." Since plaintiff's condition is not at issue in defendant's action to recover damages, i.e., her marital tort claim, that exception does not apply. See 287 N.J. Super. at 316.
    Where no statutory or other traditional exceptions to the privilege apply, the court should not order disclosure of therapy records, even for in camera review by the court, without a prima facie showing that the psychologist-patient privilege should be pierced under Kozlov's tripartite test: (1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source.
    Because the trial court did not apparently rule on this issue, we reach our conclusions based on our own examination of

the record. The information that defendant seeks in support of her marital tort claim consists primarily of plaintiff's admission to his therapist that he had beaten defendant. We first observe that admissions of criminal acts during psychotherapy are within the core of what is protected by the psychologist-patient privilege. See Jaffee, supra, 518 U.S. at ___, 116 S. Ct. at 1925-27, 135 L. Ed. 2d at 341-43 (holding that communications between psychotherapist and police officer who entered counseling after fatally shooting man in course of her employment were privileged in suit for wrongful death stemming from shooting). Plaintiff is in the position of defending the tort claim, thus he cannot be said to have voluntarily put his mental condition "in issue." Cf. Arena, supra, 201 N.J. Super. at 81 (holding that patient waived privilege by seeking damages for emotional distress). Nor does the assertion of privilege on this issue implicate the Sixth Amendment right of confrontation, or any other constitutional right that has been called to our attention. Cf. L.J.P., supra, 270 N.J. Super. at 443 (holding that defendant's right to confront his accuser compelled piercing psychologist-patient privilege); McBride, supra, 213 N.J. Super. at 270 (same). Therefore, the presumption against pierci