THE FAMILY LAW SECTION OF THE FLORIDA BAR, Honorable Raymond T. McNeal Professionalism Award, Jorge M. Cestero Distinguished Member Service Award, General Magistrates & Child Support Hearing Officers, We are thrilled to present the recipients of this year's Rising Stars award, in recognition of their enthusiasm, initiative and outstanding service to The Family Law Section of The Florida Bar and its goals; they are rising stars! 2d 544 (Fla. 3d DCA 1989) (holding that testimony from a counselor of seven years prior can be of no relevance to the [former wifes] present ability to care for the child). [49] Oldham v. Greene, 263 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). 39, 744 (2019), and focuses on cases under Fla. Stat. By Jerome H. Poliacoff, Carolann Mazza, Joryn Jenkins, and Christen Ritchey We are excited to share the most recent edition of the Family Law Section's Commentator: Winter 2021. 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 informations relevance will not be sustained if the information appears reasonably calculated to lead to the discovery of admissible (i.e., must be relevant) evidence. [38] Critchlow, 347 So. 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]. Share on Facebook Share on Twitter Share on Linked In Share by Email. [3] Fla. Fam. Check out our Commentator Archives. Events sufficiently calamitous to waive privilege have included a partys recent suicide attempt,[36] a partys recent serious threat of suicide,[37] and a partys voluntary hospitalization for mental-health treatment during the proceeding. In Recognition of Marital and Family Equality: The Family Law Sections Brief Amicus Curiae in Shaw Florida Bar, Family Law Section Commentator, Volume XXVIII, No.1, Fall 2014. [86] Perez v. Fay, 160 So. [66] Asteberg v. Russell, 144 So. Co-Presenter, Post-Obergefell: Parentage Issues for Same Sex Couples, Florida Bar, Family Law Section CLE (March, 2016). The Family Law Sections Commentator is a quarterly publication containing all the latest news concerning Florida family lawyers and Section activity. First, is competency an issue? Subscribe to receive important updates and news from Florida Courts. They are proud uncles of ten amazing nieces and nephews. 87, No. [88], Pleading for Relief A party seeking to limit the other parents constitutionally protected parental rights must plead for that relief. General Magistrate & Hearing Office Committee Member (2010-18); Committee Co-Chair (2014); Committee Chair (2017-18). [65] In 2017, the Florida Supreme Court adopted stand-alone family law rules. The business of the Family Law Section, whether informal or formal, shall not be recorded in any manner, through any medium, at any time by any participants without the prior written consent from the Section Chair. Marital & Family Board Certified Attorney Serving Clients in Palm Beach, Broward & Miami-Dade Counties. [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. Q. Third, what discovery is appropriate? Verified pleadings or affidavits may be sufficient to satisfy the rules requirements). He regularly practices in Palm Beach, Broward and Miami-Dade County. The Top 100 List, even more selective and . [73] Fla. Fam. [25] ONeill v. ONeill, 823 So. Good Cause Requirement Regardless of the condition being examined, the party requesting the examination carries the burden of showing good cause for the examination. [79] Fla. Fam. 2d 691 (Fla. 5th DCA 1984). (b) Appointment of Social Investigator. contributors and not of The Florida Bar or the Family Law Section. 2023 The Florida Bar. [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. 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). Privacy Statement|Accessibility Statement|Legal Notice(850) 922-5081500 South Duval Street, Tallahassee, FL, 32399-1925, All Content Copyright 2023 Florida Courts, Court Councils, Commissions, and Committees, General Contract Conditions for Services and Commodities, 500 South Duval Street, Tallahassee, FL, 32399-1925. If the party not requesting the examination wishes to preserve privilege, he or she may endeavor to obtain the examiners report or take the examiners deposition in accordance with the other rules of procedure and not under 12.360(b). A detailed overview of the contents of a child custody evaluation brought under Fla. Fam. The investigator shall be required to consider the best interests of the child based upon all of factors affecting the welfare and interest of the particular minor child and the circumstances of that family, including, but not limited to the statutory factors set forth in section 61.13, Florida Statutes. 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 partys potential mental-health issue within a family law matter. The court upon hearing may order the additional examination, evaluation, testing, or interview of the minor child based on the court finding that the investigation is insufficient and that further examinations, testing, interviews, or evaluations of the minor child would be in the best interests of the minor child. Family Law Commentator 2 Spring 2022 3 Message from the Chair 5 Commentator Chair's Message 7 Message from the Co-Chairs of the Publications Committee 8 Guest Editor's Corner 10 Department of Revenue Administrative Child Support Order 15 Feeling Your Way Through a Family Law Appeal Part I. Appealability and Standards of Appellate Review [98] Moore v. Yahr, 192 So. Inc. v. Hernandez, 748 So. The Florida Bar Family Law Section Commentator; of 40 /40. [60] There are two unique procedural requirements that practitioners should note. She offers a professional commitment to understand and embrace each familys exceptional qualities. [10] Wade v. Wade, 124 So. If your browser does not render page correctly, please read the page content below, We use cookies. Family Law Rule 12.364. He was appointed to the court after 24 years in private practice, primarily in the areas of civil litigation, family law, appellate law, adoption law, arbitration, and mediation. - Editor Volume XXXIV, No. XXIV, No.3, 11-13. University of Florida, Frederick G. Levin College of Law (1998-2002) J.D./M.A.(Sociology). Received . Examination of children is beyond the scope of this article. [63] Good cause is a higher threshold than many parties and practitioners may believe. While quashing a trial courts order compelling a fathers psychological examination under Rule 12.360, the First District Court of Appeal in Oldham v. Greene, 263 So. This column is submitted on behalf of the Family Law Section, Douglas A. Greenbaum, chair, and Bernice Bird, editor. To get started and understand how the forms work, You may qualify for a fee waiver. 61.20 (2019). Since 1991, a series of Florida Supreme Court opinions have been instrumental in shaping family courts . An order appointing a social investigator shall state that the investigator is being appointed under section 61.20, Florida Statutes, and shall state: (1) The name, address, and telephone number for each parent. [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 partys waiver of privilege or court order compelling their production.[33]. A partys mental health is most likely to be considered at issue when it affects that partys present ability to earn income or present ability to care for a child. There continue to be many overlaps between the two sets of rules in language and procedures. [93] Russell v. Russell, 240 So. [71] See, e.g., Stakley v. Allstate Ins. 2d 794 (Fla. 4th DCA 1992). About [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. Ch. The two avenues by which a party may be requested or compelled to undergo the examination(s) are under Fla. Fam. 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. [13] Third, the factual allegations must include the manifestation of current issues not just historical ones. [69] Fla. Fam. Relocation by Agreement All rights reserved. [97], Cost of the Relief Being Granted The court must take the costs of the relief being granted into consideration before imposing the relief. [64] Schlagenhauf v. Holder, 379 U.S. 104 (1964). [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]. 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 Floridas families through legal representation, guardian ad litem services, and as a mediator. For example, it is reversible error for the court to condition a partys timesharing on his or her payment of a supervisor. Commercial Blvd.,Suite 201,Fort Lauderdale, LAW OFFICE OF CHRISTOPHER W. RUMBOLD, PLLC. v. Hellinger, 445 So. 2d 1319 (Fla. 4th DCA 1995). 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 reporters presence). What is the process to request a change of venue regarding nonpayment of child support/contempt of court in Alabama? 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. [8], Mental Health and Parenting Plan Issues[9] For a parents 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. Court cases involving one family are handled before one judge unless impractical. The firm is uniquely qualified in achieving a good outcome. February 17, 2016 Practice Audio Webcast CLE [14] Koch v. Koch, 961 So. Second Inquiry: Is the Mental-Health Issue Relevant to the Case? 61.13(c)2 requires that the court order shared parental responsibility unless there is a finding of detriment to the child. [94] See, e.g., Stanley-Baker v. Baker, 789 So. The role of the self-help center staff is to direct interested individuals to the self-help website where they can explore resources needed to represent themselves, access the courts, and other essential resources. 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? Cycles of Displacement - Understanding Exclusion, Discrimination and Violence Against LGBTQI People in Humanitarian Contexts - International Rolling out free early education for disadvantaged two year olds: an implementation study for local authorities and providers, The impact of parental imprisonment on children - Quaker United Nations Office - Prison-Off, Ultimate family - The Chelsea Magazine Company, Student-athletes show their true colours - THE MAGAZINE OF COLLINGWOOD SCHOOL. [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. Super Lawyers names the top 5% of attorneys in the State of Florida. 89 (2001), available at https://www.floridabar.org/the-florida-bar-journal/anatomy-of-a-child-custody-evaluation/. L. R. P. 12.280(c)(1) (2020). 2d 837 (Fla. 5th DCA 2002). Fourth Inquiry: What Relief is Appropriate? Powerful Families. R.P. [70] McCorkle v. Fast, 599 So. There are three primary tools available: production of the persons pre-existing medical and/or psychological records, a psychological or psychiatric examination, and a social investigation. L. R. P. 12.360 or a social investigation under F.S. [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. As such, the judge is not bound by the recommendation of the social investigator. All copies must include this copyright statement. The Florida Bar 650 Apalachee Parkway Tallahassee, Florida, IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, CASE . 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). 3) Calamitous Event: A calamitous event during or sufficiently proximate in time to litigation may result in a waiver of psychotherapist-patient privilege. 3d 369 (Fla. 3d DCA 2013) (A parents 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]ifes prior health, physical and mental, are not relevant to her current ability to parent the children; [w]hat is relevant to the trial courts determination regarding child custody is the parties present ability and condition) (citing Schouw v. Schouw, 593 So. [100] Moore, 192 So. This rule shall apply to the appointment of an investigator to conduct a social investigation and study under section 61.20, Florida Statutes. [54] The appropriate examination will depend on the facts of the case and the issue in controversy. [20] These privileges include, in relevant part, physician-patient privilege,[21] psychotherapist-patient privilege,[22] and sexual assault counselor-victim privilege. 41 (Mar. [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. However, it should be noted that, Russenberger addressed a psychological examination of a minor child under Fla. R. Civ. FALL 2012 COMMENTATOR 25 Paternity in the Modern Family By John W. Foster, Sr. and Kelli A. Murray of Baker & Hostetler, LLP .
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