Mental-Health Issues in Florida Family Law, Part 2
The first part of this two-part series discussed the prevalence of mental-health issues in the United States, defined mental health, and identified the four core inquiries a family law[1] practitioner should make when evaluating a party’s potential mental-health issue within a family law matter. First, is competency an issue? Second, is the issue relevant to the case. Third, what discovery is appropriate? And fourth, what relief is appropriate? This two-part article series addresses each core inquiry. The first article addressed the first inquiry. This second article addresses the final three inquiries.
Second Inquiry: Is the Mental-Health Issue Relevant to the Case?
Presuming both parties have sufficient competence to proceed, the second question to be answered before any further time or money is expended is: Is it relevant? The Florida Evidence Code provides, “All relevant evidence is admissible, except as provided by law.”[2] Therefore, the converse is also true — all irrelevant evidence is inadmissible. Parties in a family law matter may pursue discovery regarding “any matter, not privileged, that is relevant to the subject matter of the pending action” and objections to the information’s relevance will not be sustained “if the information appears reasonably calculated to lead to the discovery of admissible (i.e., must be relevant) evidence.[3] Relevant evidence is “evidence tending to prove or disprove a material fact.”[4] The definition’s key phrase is “material fact.” What constitutes a material fact will depend on the subject matter being litigated in the certain case. A party’s mental health is most likely to be considered at issue when it affects that party’s present ability to earn income or present ability to care for a child.[5] Each item will be discussed in turn.
• Mental Health and Ability to Earn Income — The central issue in determining whether a mental-health problem is relevant for litigation concerning financial issues is whether it affects a party’s ability to earn income.[6] Typically, this scenario arises when a party claims his or her mental-health issue(s) diminishes or otherwise influences his or her ability to earn income.[7] A party making such an allegation may place the matter in controversy, and, consequently, relevant for purposes of discovery and admissibility of evidence for the court’s determination of the issue.[8]
• Mental Health and Parenting Plan Issues[9] — For a parent’s mental health to be in controversy, there first must be factual allegations that he or she is presently having problems that could substantially impact his or her present ability to properly parent.[10] As such, merely requesting the court establish a parenting plan is insufficient to place either party’s mental health in controversy such that a claim of privilege is waived it has to go further than that.[11]
These factual elements are further itemized for clarity’s sake. First, the allegations must be verified or evidence must be presented to support them.[12] Second, the allegations must be specific facts — conclusory allegations are insufficient.[13] Third, the factual allegations must include the manifestation of current issues — not just historical ones.[14] Finally, there must be a nexus between the manifested issues and the party’s present ability to properly parent the child or children.[15]
Once the proper factual allegations have been made, a hearing may be necessary for the court to determine if mental health is, in fact, at issue.[16] Verified pleadings or affidavits may be sufficient to satisfy the requirement; however, if the verified pleadings or affidavits are insufficient, an evidentiary hearing may be required.[17] It is error for the court to make a finding that a party’s mental health is at issue if there are only conclusory allegations made and no verified allegations or evidence are presented to support the finding.[18] As a practice point, family law practitioners should consider working with their clients in obtaining as many facts and details as available when a party’s mental health is questioned, particularly when crafting verified pleadings and affidavits.
Third Inquiry: What Discovery Is Available?
Once a court has determined that a party’s mental health is, in fact, relevant in the case, the next step is to gain an understanding of that party’s mental-health status and its effect on the party’s ability to earn income and/or care for a child. There are three primary tools available: production of the person’s pre-existing medical and/or psychological records, a psychological or psychiatric examination, and a social investigation.[19] Each are discussed in turn.
• Production of Pre-Existing Medical and Psychological Records — It is not unusual for a litigant or practitioner to desire access to the opposing party’s pre-existing medical or psychological records to build or defend a case. However, given the private, personal, and privileged nature of those records, access is difficult to obtain.
1) Existence of Privilege: Florida law recognizes certain privileges that prevent the testimony of certain persons, disclosure of certain matters, and production of certain objects or writings during litigation.[20] These privileges include, in relevant part, physician-patient privilege,[21] psychotherapist-patient privilege,[22] and sexual assault counselor-victim privilege.[23] If a privilege exists, the privilege must be overcome for the records to be discoverable.[24]
Privileges are statutory in nature, therefore, strictly construed.[25] Examples of the strict interpretation of privilege includes: 1) Florida law’s limitation of recognition of existence of privilege to only those enumerated in F.S. Ch. 90, any other statute, or the constitutions of the United States or the state of Florida — no other privileges are recognized;[26] 2) finding that psychotherapist-patient privilege exists only for the testimony and records for purposes of diagnosis or treatment of a mental or emotional condition, and not any other testimony or records;[27] 3) finding that psychotherapist-patient privilege protects only the substance of communications between therapist and patient and, therefore, not the identity of medical or mental-health professionals consulted.[28]
• Overcoming Privilege — There are generally three circumstances when a litigant has waived his or her right to assert a privilege with respect to his or her mental-health issue: voluntary waiver of the privilege, placing the matter at issue, or the occurrence of a calamitous event proximate in time to the litigation. Absent one of these circumstances being present, it is error for the court to compel production of a party’s privileged medical records.[29]
1) Voluntary Waiver of Privilege: A person holding a privilege has the right to waive that privilege by voluntarily disclosing the information, consenting to the disclosure, or communicating the privileged information when there is no reasonable expectation of privacy.[30]
A practitioner should be cautious when agreeing to have a client’s prior medical and mental-health records produced to an independent evaluator for review because doing so constitutes a waiver of privilege for those records.[31] However, simply agreeing to have a social investigation done is not an automatic waiver of privilege for prior records.[32] In other words, so long as a party has not agreed to produce his or her prior records to an investigator, there is no waiver of privilege as to those records and the investigator will not be entitled to review the records absent a party’s waiver of privilege or court order compelling their production.[33]
2) Placing the Matter at Issue: When a party is relying on his or her mental-health issue to support a claim or defense, he or she may be waiving his or her right to confidentiality and privilege about that issue.[34] Most often this is done by or through asserting the issue in a pleading or asserting it as a basis for relief in a motion.
3) Calamitous Event: A calamitous event during or sufficiently proximate in time to litigation may result in a waiver of psychotherapist-patient privilege.[35] There are two key elements to this emergency-situation waiver: First, the event must be calamitous; and second, the event must be proximate in time to the litigation.
The term “calamitous” is not defined in statute or caselaw; however, there is a body of prior rulings that provide guidance. Events sufficiently calamitous to waive privilege have included a party’s recent suicide attempt,[36] a party’s recent serious threat of suicide,[37] and a party’s voluntary hospitalization for mental-health treatment during the proceeding.[38] In contrast, events insufficiently calamitous to waive the privilege have included a party unsuccessfully attempting to involuntarily admit the opposing party for substance abuse treatment under the Marchman Act,[39] a party actively treating his or her addiction,[40] and a party merely having historical mental-health issues.[41]
This leads into the second element: proximity in time of an alleged calamitous event to the pending litigation. Courts have previously held that issues or events more than 10 years prior,[42] seven years prior,[43] six years prior,[44] and two years prior[45] are not close enough in time to render them relevant to the instant proceedings. This is because the evidence must show the party’s behavior has had or is reasonably likely to have a negative impact on the child — the mere possibility of a negative impact is insufficient.[46] The further in the past the issues or events are, the more tenuous their connection is likely to be to the party’s present ability to earn income or care for a child.
Examination of Persons under Fla. Fam. L. R. P. 12.360[47]
A party may undergo an examination by a qualified person or expert for use in pending family law litigation. The two avenues by which a party may be requested or compelled to undergo the examination(s) are under Fla. Fam. L. R. P. 12.360 or a social investigation under F.S. §61.20.[48] While there may be some overlap, each has its own unique characteristics. Therefore, when either avenue could be appropriately employed, the parties are entitled to know whether the examination is being requested and/or compelled under Rule 12.360 or §61.20.[49]
• Examinations for Condition in Controversy — One party may request the other party to submit to a qualified expert for examination of a condition in controversy.[50] The rule’s language suggests an inclusive and expansive nature, such that a party may be requested to undergo any examination by any expert so long as the examination is “related to a matter in controversy.”[51] In family law, common mental-health-related examinations under this rule include psychiatric and psychological examination.[52] The examination may be general, such as a comprehensive psychiatric examination or a child custody evaluation;[53] or the examination may be more targeted, such as a psychosexual evaluation.[54] The appropriate examination will depend on the facts of the case and the issue in controversy.
• Physical vs. Other Examination — Rule 12.360 outlines slightly different procedures and requirements depending on the type of examination being conducted. The rule does not require that a court order be entered compelling the physical examination for the procedure to be initiated.[55] A physical examination of a party can be simply requested — much like a request to produce[56] or service of interrogatories[57] that are commonplace in discovery practice. The request may be served with or after service of process of the initial pleading and must specify “a reasonable time, place, manner, conditions, and scope of the examination and the person or persons by whom the examination is to be made.”[58] The party to whom the request for physical examination is directed must serve a response to the request within 30 or 45 days after service of the request, depending on whether the request is made with or after service of process of the initial pleading, stating if the examination will be permitted as requested, or objected to, and the basis for the objections.[59] Therefore, the practitioner scheduling the physical examination should set the examination after the response deadline so as to reduce the likelihood of having to pay appointment cancellation fees.
Unlike physical examinations, examinations for other conditions in controversy — such as mental-health-related examinations — may be obtained only after a motion is filed and a hearing is held with proper notice to all parties and the person to be examined.[60] There are two unique procedural requirements that practitioners should note. First, the person to be examined must receive notice of the motion, the hearing, and any court order entered as a result of the hearing; special attention should be paid by practitioners to certificates of service when the person to be examined is not a party.[61] Second, an order granting a motion for examination not for a physical condition must include the following details: the time, place, manner, conditions, scope of examination, and the person(s) by whom the examination is to be made.[62]
• Good Cause Requirement — Regardless of the condition being examined, the party requesting the examination carries the burden of showing good cause for the examination.[63] Good cause is a higher threshold than many parties and practitioners may believe. While interpreting Fed. R. Civ. P. 35(a), which is nearly identical to Fla. Fam. L. R. P. 12.360(a) and Fla. R. Civ. P. 1.360(a), the U.S. Supreme Court held that the “in controversy” and “good cause” requirements of Rule 35:
…are not met by mere… relevance to the case — but are an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.[64]
Florida courts likewise embrace a high threshold for establishing good cause. While quashing a trial court’s order compelling a father’s psychological examination under Rule 12.360, the First District Court of Appeal in Oldham v. Greene, 263 So. 3d 807 (Fla. 1st DCA 2018), commented: “The focus of rule 12.360 is not on good or bad parenting, but on something larger, some greater indicator of deeper mental health concerns.”
The Second District Court of Appeal further defined “good cause” for a psychiatric or psychological examination under Fla. R. Civ. P. 1.360[65] as, “that the mental state of [the party], even though ‘in controversy,’ cannot adequately be evidenced without the assistance of expert medical testimony.”[66] For more on good cause, see the “Second Inquiry” section above. Should no good cause be shown, the court cannot compel the examination.
• Protective Measures — Rule 12.360 and caselaw interpreting it recognize the oftentimes confidential and sensitive nature of the results of examinations performed. The U.S. Supreme Court has observed, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”[67] While discussing a psychiatric examination sought, the Second District Court of Appeal opined, “[d]iscovery of this type is of the most personal and private of nature. The potentially negative effects of requiring [the party] to bare his inner self against his wishes are self-evident.”[68]
In light of the foregoing disfavored view of compulsory examinations, Rule 12.360 grants the court with authority to establish protective measures upon request of either party or the person being examined.[69] A protective measure may include an order barring a third-party attendee upon showing that their presence would be disruptive, superfluous, or otherwise inappropriate.[70] However, the court’s power to impose protective measures is not unfettered; any measures must be based on valid reasons and upon objection of one or both of the parties.[71]
• Designation of Examiner — Entry of an order for examination under Rule 12.360 does not render the examiner “court-appointed.” On the contrary, Rule 12.360(c) specifically states “the examiner may be called as a witness by any party to the action, but is not to be identified as appointed by the court.”[72]
• Special Procedures for Report of Examiner for Examinations by Agreement — Rule 12.360(b) provides that, once an examination has occurred, the party who has been examined as well as the opposing party, upon request, are entitled to a copy of “a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition.”[73] This requirement must be met regardless of whether the party conducting the examination plans to have the expert testify.[74] However, practitioners beware of the following provision of Rule 12.360(b)(2):
By requesting and obtaining a report of the examination…the party examined waives any privilege that party may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine that party concerning the same condition.[75]
Consequently, after delivery of the detailed written report, the other party (the one who requested the examination) may request:
to receive from the party to whom the request for examination or against whom the order is made a similar report of any examination of the same condition previously or thereafter made, unless in the case of a report of examination of a [non-party], the party shows the inability to obtain it.[76]
If the party not requesting the examination wishes to preserve privilege, he or she may endeavor to obtain the examiner’s report or take the examiner’s deposition in accordance with the other rules of procedure and not under 12.360(b).
Social Investigation
Social investigations are permissible under F.S. §61.20. The purpose of a social investigation is for a qualified person[77] to aid the court in determining the child’s best interest, according to the factors set forth in F.S. §61.13, when a parenting plan is at issue because the parents are unable to agree to it.[78] The social investigator endeavors to obtain all pertinent details relating to the child or children and each parent and makes a recommendation to the court that the court may, but is not required to, consider when rendering its decision.[79] Fla. Fam. L. R. P. 12.364 sets forth the process for appointment of a social investigator, the written study with recommendations, additional subsequent investigations, and availability of the investigator’s file.
While social investigations may often provide valuable insight to the parties and to the court, such investigations are often costly. Courts should be mindful of the costs involved when determining whether to order such an investigation. In Higginbotham v. Higginbotham, 857 So. 2d 341 (Fla. 2d DCA 2003), the Second District Court of Appeal critiqued a trial court order requiring a $20,000 social investigation when the parties’ combined gross monthly income, including overtime, was approximately $6,900, stating: “If a judicial system is trying to reach a child placement decision in the best interest of the child, it is difficult to grasp how it is in the best interest of the child to deplete the resources of the family to this extent.” Courts and counsel can aid in lowering the costs associated with a social investigation by narrowly tailoring the issues that the investigators are to address.[80]
The judge is the finder of fact and may not properly delegate its fact finding to any third party. As such, the judge is not bound by the recommendation of the social investigator. In fact, it is an improper delegation of decision-making authority for a court to make any portion of a parenting plan subject to the recommendations of a social investigator.[81]
Fourth Inquiry: What Relief is Appropriate?
Once the practitioner has an understanding of the mental-health issue and its potential impact on the case, then the final inquiry is — what relief is appropriate? The answer depends on the facts of the case. Nevertheless, a few over-arching principals apply when a party’s mental health has, in fact, impacted his or her ability to earn income or properly care for a child.
• Constitutional Right to Parent — The Florida Supreme Court has recognized a constitutionally protected “inherent right” for a parent to have a meaningful relationship with his or her children.[82] In light of parents’ constitutional rights, a court must have competent, substantial record evidence demonstrating that any restrictions[83] on a child’s time-sharing with either one of his or her parents is in that child’s best interests before ordering or implementing any such restrictions.[84] Restrictions include requiring supervision of a parent’s timesharing,[85] a denial of timesharing,[86] or awarding anything other than shared parental responsibility.[87] In a concurring opinion, Judge Conner of the Fourth District Court of Appeal suggests that the family law court even has the implicit authority to order individual mental-health counseling for litigants.[88]
• Pleading for Relief — A party seeking to limit the other parent’s constitutionally protected parental rights must plead for that relief.[89] The pleadings should clearly place all parties on notice of the relief being sought or the relief may not be granted.[90] A court lacks jurisdiction to enter an order on issues outside of what is set forth in the pleadings and litigated by the parties.[91] For example, a court cannot order a party to obtain alcohol-abuse counseling and attend parenting classes when no such relief is requested in either the pleadings or pre-trial statements[92] and a court cannot alter a party’s decision-making authority over his or her child when such relief is not requested in the pleadings nor tried by consent.[93]
• Due Process Rights Must Be Preserved — Due process requires that all parties have notice and the opportunity to be heard on all issues, particularly those that affect their constitutionally protected parental rights.[94]
• Duration of Relief Granted — For how long should the relief being sought be granted? Is the mental-health issue temporary or permanent in nature? In terms of limiting a parent’s access to his or her child, it is reversible error to forever bar a parent’s ability to have access to a child or to seek modification of the order limiting his or her access to the child.[95] The court must provide “specific steps or a key” to the parent whose parental rights are being limited so that the parent knows what he or she must do to regain his or her full parental rights.[96] To leave an order devoid of benchmarks to be achieved to regain timesharing rights lost would make the temporary nature of the limitation wholly illusory.[97]
• Cost of the Relief Being Granted — The court must take the costs of the relief being granted into consideration before imposing the relief. For example, it is reversible error for the court to condition a party’s timesharing on his or her payment of a supervisor.[98] To do so would inappropriately intertwine a parent’s timesharing rights with his or her payment of financial obligations.[99] Instead, all child-rearing expenses — including payment of supervisor(s) and timesharing travel expense(s) — should be shared between the parents in accordance with their financial means or otherwise included in the child support guidelines calculations.[100]
Conclusion
It was once said, “The greatness of a nation can be judged by how it treats its weakest member.”[101] The most vulnerable among us likely include those wrestling illness — whether physical or mental. Given the nature of our industry, family law attorneys have a special responsibility to ensure that concern for a client’s desired result does not subvert our society’s fairness, honesty, civility, respect, and courtesy for all involved — particularly the weak.[102] Family law practitioners can begin to meet that responsibility by making biases, assumptions, and myths surrounding mental health a thing of the past and taking the time to understand the facts, think through the issues, and educate themselves and their clients on the governing laws.
[1] The phrase “family law” in this case excludes cases under Fla. Stat. Ch. §§39, 744 (2019), and focuses on cases under Fla. Stat. Ch. §§61, 741, 742, 751 (2019).
[2] Fla. Stat. §90.402 (2019).
[3] Fla. Fam. L. R. P. 12.280(c)(1) (2020).
[4] Fla. Stat. §90.401 (2019).
[5] Anderson v. Anderson, 470 So. 2d 52 (Fla. 4th DCA 1985) (quashing an order for the psychological examination of the wife when the wife was not seeking alimony and there were no child-related issues pending).
[6] Paul v. Paul, 366 So. 2d 853 (Fla. 3d DCA 1979) (holding that the wife put her physical health in controversy because she alleged to be in “frail health” as a claim for her support).
[7] See, e.g., Goldstein v. Goldstein, 284 So. 2d 225 (Fla. 3d DCA 1973) (noting that the wife raised her ill health as affecting her ability to be self-supporting, thus, putting it at issue within her claim for alimony).
[8] Pollock v. Pollock, 722 So. 2d 283 (Fla. 5th DCA 1998) (considering the wife’s mental-health problems when determining her alimony request).
[9] Mental-health issues in children is a topic that is outside of the scope of this article.
[10] Wade v. Wade, 124 So. 3d 369 (Fla. 3d DCA 2013) (“A parent’s mental state is typically at issue in a custody hearing only when there are verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children.”); Ricketts v. Ricketts, 2D19-3854 (Fla. 2d DCA June 19, 2020) (stating “[t]he [w]ife’s prior health, physical and mental, are not relevant to her current ability to parent the children; ‘[w]hat is relevant to the trial court’s determination regarding child custody is the parties’ present ability and condition’”) (citing Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992)).
[11] See, e.g., Roeper v. Roeper, 336 So. 2d 654 (Fla. 4th DCA 1976) (holding that merely seeking custody of a child does not make a party’s mental condition an element of the claim or defense of the case); Kristensen v. Kristensen, 406 So. 2d 1210 (Fla. 5th DCA 1981) (rejecting the argument that a parent’s mental health is in controversy simply because a party alleges one or the other parent would be the better parent to have custody).
[12] Temares v. Temares, 201 So. 3d 646 (Fla. 3d DCA 2015) (reversing an order for a compulsory psychological evaluation or drug testing where there were no verified allegations or pleadings and no good cause shown at a hearing for ordering the testing).
[13] Astseberg v. Russell, 144 So. 3d 606 (Fla. 2d DCA 2014) (A party’s belief that the other parent is not supporting or promoting the child’s relationship with the other parent did not put that parent’s mental health in controversy.); Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996) (“Mere allegations of mental or emotional instability are insufficient to place the custodial parent’s mental health at issue so as to overcome the [therapist-patient] privilege.”); Williams v. Williams, 550 So. 2d 166 (Fla. 2d DCA 1989) (allegations that a father was “unstable,” that he failed to use a car seat for the child, that the child wet his pants after a visit with the father, and that the father used inappropriate language in the child’s presence were insufficient to put the father’s mental health in controversy); Schlagenhauf v. Holder, 379 U.S. 104 (1964) (requiring more than conclusory allegations for the court to order a psychological examination); Temares v. Temares, 201 So. 3d 646 (Fla. 3d DCA 2015).
[14] Koch v. Koch, 961 So. 2d 1134 (Fla. 4th DCA 2007) (holding a prior substance abuse problem and treatment, without more, was insufficient to put that parent’s health at issue in the pending family law litigation); Frisard v. Frisard, 453 So. 2d 1150 (Fla. 4th DCA 1984) (finding that the disclosure of a past hospitalization for mental-health issues was insufficient for putting that party’s mental health in controversy in the pending litigation); Zarzaur v. Zarzaur, 213 So. 3d 1115 (Fla. 1st DCA 2017) (stating the court must focus on the parent’s present ability and fitness and holding that a seven-year look back was improper absent findings of relevancy of the historical issues); Piesach v. Antuna, 539 So. 2d 544 (Fla. 3d DCA 1989) (holding that testimony from a counselor of seven years prior can be of “no relevance to the [former wife’s] present ability to care for the child”).
McKinnon v. Staats, 899 So. 2d 357 (Fla. 1st DCA 2005) (holding that the trial court should focus on whether the parent’s conduct has had or is reasonably likely to have an adverse impact on the child; there must be evidence of a direct adverse impact on the child — finding the possibility of an impact is insufficient); Zarzaur, 213 So. 3d at 1115; Schouw, 593 So. 2d at 1200.
[16] Smith v. Smith, 64 So. 3d 169 (Fla. 4th DCA 2011) (granting certiorari for the trial court to hold an evidentiary hearing to consider whether the wife placed her mental health at issue with a suicide attempt made about ten months prior to the filing of the petition for dissolution of marriage).
[17] Russenberger v. Russenberger, 639 So. 2d 963 (Fla. 1994) (stating “an evidentiary hearing may or may not be necessary in [Fla. R. Civ. P. 1.360] cases to determine whether the rule’s ‘good cause’ and ‘in controversy’ requirements have been satisfied. Verified pleadings or affidavits may be sufficient to satisfy the rule’s requirements”). However, it should be noted that, Russenberger addressed a psychological examination of a minor child under Fla. R. Civ. P. 1.360. Examinations of children are now under Fla. Fam. L. R. P. 12.363 and are, as previously noted, beyond the scope of this article.
[18] Smith, 64 So. 3d at 169.
[19] There may be other processes available depending on the circuit and the parties’ finances. For a general overview of potentially available options when a parenting plan is at issue, see generally Linda Fieldstone & Debra K. Carter, Ph.D., FLACC Task Force on Social Investigations & Parenting Plan Evaluations: Survey of Florida Circuit Programs and Processes, 26 Fla. Fam. L. Commentator 15 (2013).
[20] Fla. Stat. §501, et seq. (2019).
[21] Although no physician-patient privilege explicitly exists within the Florida evidence code, the Florida Supreme Court has held in other instances that physician-patient and medical record privileges exist. See Hasan v. Gravar, 108 So. 3d 570 (Fla. 2012); S.P. ex rel. R.P. v. Vecchio, 162 So. 3d 75, 79 (Fla. 4th DCA 2014) (observing that Fla. Const. art. 1 §23 has been extended to preclude dissemination of a person’s medical records) (citing State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002)).
[22] Fla. Stat. §90.503 (2019).
[23] Fla. Stat. §90.5035 (2019)
[24] Fla. Fam. L. R. P. 12.280 (c)(1) (2020) (acknowledging generally that privileged material is not discoverable); see, e.g., Vecchio, 162 So. 3d at 80 (“absent evidence of an applicable statutory exception or waiver, a trial court departs from the essential requirements of law when it enters an order compelling disclosure of communications or records in violation of the psychotherapist-patient privilege”).
[25] O’Neill v. O’Neill, 823 So. 2d 837 (Fla. 5th DCA 2002).
[26] Fla. Stat. §90.501 (2019).
[27] Oswald v. Diamond, 576 So. 2d 909 (Fla. 1st DCA 1991).
[28] Wilder v. Wilder, 993 So. 2d 182 (Fla. 2d DCA 2008); but see Weinstock v. Groth, 659 So. 2d 713 (Fla. 5th DCA 1995) (holding that, where a party has not placed her mental condition at issue in a defamation lawsuit, she was entitled to assert psychotherapist-patient privilege regarding the name and address of any psychotherapists who had treated her in the prior five years).
[29] Ricketts, 2d19-3854.
[30] Fla. Stat. §90.507 (2019).
[31] Zarzaur, 213 So. 3d at 1115.
[32] McIntyre v. McIntyre, 404 So. 2d 2018 (Fla. 2d DCA 1981) (upholding a party’s privileged-based objection to a court-appointed social investigator’s request for that party’s prior mental-health records).
Bailey v. Bailey, 176 So. 3d 344 (Fla. 4th DCA 2015) (holding, inter alia, that the husband may assert psychotherapist-patient privilege as to his prior records even if a social investigator is appointed).
[34] Id. at 346 (stating that a party may waive privilege by, inter alia, “relying on his mental condition to support any claims or defenses”). The disclosure of private psychiatric records is also a common issue in Florida auto accident litigation. See generally Davis M. Lewis, The Shield and the Sword: Regarding Disclosure of Private Psychiatric Records as a Routine Element of Discovery in Florida Auto Accident Litigation, 81 Fla. B. J. 41 (Mar. 2007).
[35] Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977); Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984).
[36] Miraglia, 462 So. 2d at 507.
[37] O’Neill, 823 So. 2d at 837.
[38] Critchlow, 347 So. 2d at 453. It should be noted, however, that the mother in Critchlow did not object, and, in fact, stipulated, to the order authorizing the depositions of her treating physicians.
[39] Zarzaur, 213 So. 3d at 1115.
[40] Koch, 961 So. 2d at 1134.
[41] Schouw v. Schouw, 593 So. 2d 1200 (Fla. 2d DCA 1992).
[42] Frisard, 453 So. 2d at 1150.
[43] Zarzaur, 213 So. 3d at 1115; Piesach, 539 So. 2d at 544.
[44] Schouw, 593 So. 2d at 1200.
[45] McKinnon, 899 So. 2d at 357.
[46] Willis v. Willis, 818 So. 2d 530 (Fla. 2d DCA 2002) (holding no negative impact on the child established when the mother moved, was previously under the influence of prescription drugs, and recently took up a profession of nude dancing and modeling); Jacoby v. Jacoby, 763 So. 2d 410 (Fla. 2d DCA 2000) (holding no nexus established between the mother’s homosexuality and a negative impact or likelihood of a negative impact on the child); Burger v. Burger, 862 So. 2d 828 (Fla. 2d DCA 2003) (holding insufficient evidence of a negative impact on the child by alleged domestic violence incidents and the mother receiving treatment for her drug addiction).
[47] There is a separate rule of procedure regarding examinations of children. See generally Fla. Fam. L. R. P. 12.363 (2018). Examination of children is beyond the scope of this article.
[48] Fla. Fam. L. R. P. 12.364 (2018) is the companion rule of procedure to Fla. Stat. §61.20 (2019). For simplicity’s sake, any reference to Fla. Stat. §61.20 (2019) will impliedly also refer to Fla. Fam. L. R. P. 12.364 unless a distinction is noted.
[49] Oldham v. Greene, 263 So. 3d 807 (Fla. 1st DCA 2018) (distinguishing between Fla. Fam. L. R. P. 12.360 and Fla. Stat. §61.20).
[50] Fla. Fam. L. R. P. 12.360(a)(1) (2020).
[51] Id.
[52] Vocational evaluations may take into consideration the impact a mental condition may have on a party’s employability; however, in that instance the focus is not on the condition itself and, therefore, not included here.
[53] This would include examinations of both the parties and the minor child(ren). A detailed overview of the contents of a child custody evaluation brought under Fla. Fam. L. R. P. 12.360 and 12.363, see generally Sherrie Boug Carter & Dale Sanders, Anatomy of a Child Custody Evaluation, 75 Fla. B. J. 89 (2001), available at https://www.floridabar.org/the-florida-bar-journal/anatomy-of-a-child-custody-evaluation/.
[54] For a detailed overview of psychosexual evaluations, see generally Alan Greico, Ph.D., Psychosexual Evaluations in Family Law, 1 Fla. Fam. L. Commentator 36 (Spring 2019).
[55] Fla. Fam. L. R. P. 12.360(1)(a) specifically states, in relevant part, that “the request may be served on the party or other persons without leave of court after commencement of the action.” (Emphasis added).
[56] Fla. Fam. L. R. P. 12.350 (2020).
[57] Fla. Fam. L. R. P. 12.340 (2020).
[58] Fla. Fam. L. R. P. 12.360 (1)(a) (2020).
[59] Id.
[60] Fla. Fam. L. R. P. 12.360 (1)(b) (2020).
[61] Examination of children is under Fla. Fam. L. R. P. 12.363 (2020) and is beyond the scope of this article.
[62] Fla. Fam. L. R. P. 12.360 (1)(b) (2020).
[63] Fla. Fam. L. R. P. 12.360 (2) (2020).
[64] Schlagenhauf v. Holder, 379 U.S. 104 (1964).
[65] In 2017, the Florida Supreme Court adopted stand-alone family law rules. In re Amendments to Fla. Family Law Rules of Procedure, 214 So. 3d 400 (Fla. 2017). Prior to that adoption, Florida’s family law rules included many references, referrals, and citations to Florida’s Rules of Civil Procedure. There continue to be many overlaps between the two sets of rules in language and procedures. Because of their similarities, this article will treat the essential terms of Fla. R. Civ. P. 1.360 and Fla. Fam. L. R. P. 12.360 interchangeably and will note any relevant distinctions.
[66] Asteberg v. Russell, 144 So. 3d 606 (Fla. 2d DCA 2014); Gasparino v. Murphy, 352 So. 2d 933 (Fla. 2d DCA 1977) (stating that “even if we assume that aberrant behavior is involved there is no showing that this cannot be adequately evidenced without expert testimony”).
[67] Union P.R. Co. v. Botsford, 141 U.S. 250 (1891) (opining in a personal injury matter on whether common law in effect at the time permitted a court to compel a surgical examination of a party as to the extent of the injury for which the suit was instituted).
[68] Gasparino, 352 So. 2d at 933.
[69] Fla. Fam. L. R. P. 12.369(3) (2020).
[70] McCorkle v. Fast, 599 So. 2d 277 (Fla. 2d DCA 1992).
[71] See, e.g., Stakley v. Allstate Ins. Co., 547 So. 2d 275 (Fla. 2d DCA 1989) (reversing a court order prohibiting the attendance of a court reporter at a physical examination when neither party objected to the reporter’s presence).
[72] Fla. Fam. L. R. P. 12.360(c) (2020).
[73] Fla. Fam. L. R. P. 12.360(b)(1) (2020).
[74] V.S.H. v. Hellinger, 445 So. 2d 691 (Fla. 5th DCA 1984).
[75] Fla. Fam. L. R. P. 12.360(b)(2) (2020); Lifemark Hosp’s. Inc. v. Hernandez, 748 So. 2d 378 (Fla. 3d DCA 2000).
[76] Fla. Fam. L. R. P. 12.360(b)(1) (2020) (emphasis added).
[77] Fla. Stat. §61.20(2) (2019) sets forth the list of qualified persons; however, said persons must be qualified as an expert under Fla. Stat. §90.702 (2019), to be able to testify regarding the written study. Fla. Fam. L. R. P. 12.364(b) (2020).
[78] Fla. Stat. §61.20(1) (2019).
[79] Id.
[80] Higginbotham, 857 So. 2d at 341 .
[81] See, e.g., Bailey, 176 So. 3d at 344 (holding that it was an improper delegation of decision-making authority for the court to make timesharing subject to recommendations of the social investigator).
[82] Schutz v. Schutz, 581 So. 2d 1290 (Fla. 1991).
[83] Some literature uses the term “restriction(s).” Limitation(s) and restriction(s) are used interchangeably in this article.
[84] Lovell v. Lovell, 14 So. 3d 111 (Fla. 5th DCA 2009); Miller v. Miller, 423 So. 2d 638 (Fla. 4th DCA 1982).
[85] Witt-Bahls v. Bahls, 193 So. 3d 35 (Fla. 4th DCA 2016).
[86] Perez v. Fay, 160 So. 3d 459 (Fla. 2d DCA 2015) (stating that a parent should not be denied timesharing so long as “the parent conducts himself or herself, while in the presence of the children, in a manner which will not adversely affect the children”).
[87] Fla. Stat. §61.13(c)2 requires that the court order shared parental responsibility unless there is a finding of detriment to the child.
[88] Ford v. Ford, 153 So. 3d 315 (Fla. 4th DCA 2015) (J. Conner, concurring).
[89] Perez, 160 So. 3d at 459.
[90] Heier v. Heier, 662 So. 2d 1319 (Fla. 4th DCA 1995).
[91] Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957).
[92] Williams v. Williams, 690 So. 2d 601 (Fla. 1st DCA 1996).
[93] Russell v. Russell, 240 So. 3d 890 (Fla. 1st DCA 2018); Abbott v. Abbott, 98 So. 3d 616 (Fla. 2d DCA 2012).
[94] See, e.g., Stanley-Baker v. Baker, 789 So. 2d 353 (Fla. 4th DCA 2001); Wilson v. Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996); Bini v. Bini, 828 So. 2d 470 (Fla. 5th DCA 2002).
[95] Freeburg v. Freeburg, 596 So. 2d 794 (Fla. 4th DCA 1992). A permanent termination of a parent’s rights may be more appropriately sought under Fla. Stat. Ch. 39. Dependency and termination of parental rights proceedings are beyond the scope of this article.
[96] Witt-Bahls, 193 So. 3d at 35.
[97] Id.
[98] Moore v. Yahr, 192 So. 3d 544 (Fla. 4th DCA 2016).
[99] See Hastings v. Rigsbee, 875 So. 2d 772 (Fla. 2d DCA 2004) (“A parent’s visitation rights may not be conditioned on the payment of the parent’s financial obligations.”).
[100] Moore, 192 So. 3d at 544 (holding as improper an order requiring a father to be solely responsible for payment of the timesharing supervisor’s charges and remanding for treatment of the expense as child support); Hindle v. Fuith, 33 So. 3d 782 (Fla. 5th DCA 2010) (holding that travel expenses are child-rearing expenses to be shared by the parties pursuant to their financial means as reflected on the child support guidelines calculations).
[101] This is often attributed to Mahatma Gandhi; however, the actual source of the quote is unverified. Paul Knight, Letter: Quote from Humphrey, not Gandhi, The Colombian (Nov. 11, 2016), available at https://www.columbian.com/news/2016/nov/11/letter-quote-from-humphrey-not-gandhi/.
[102] Fla. Bar Fam. L. Section, Bounds of Advocacy, Preliminary Statement (May 1, 2018), available at http://familylawfla.org/wp-content/uploads/2018/05/Fla-Bar-Magazine_5-18_text_final_electronic-version.pdf.
Sarah E. Kay is a trial-tested litigator, board certified in marital and family law, who is also experienced in collaborative divorce. Through her law firm, Kay Family Law, PLLC, in Tampa, she assists solo and small-firm attorneys statewide through contract research, writing, and consulting services in addition to directly assisting Florida’s families through legal representation, guardian ad litem services, and as a mediator. The author thanks Jennifer L. Mockler, Ph.D., of Mockler Psychology, P.A., in Tampa, for her expert advice and contributions to this article, as well as Christopher W. Rumbold and Krystine Cardona for their invaluable assistance in the editorial process.
This column is submitted on behalf of the Family Law Section, Douglas A. Greenbaum, chair, and Bernice Bird, editor.
