MEMORANDUM OF LAW

Issue 1: Can the courts order parties submit to a mental examination?

A party may move to compel the court for a psychological examination for the opposing party or a child pursuant to the Florida Rule of Civil Procedure 1.360 (a) (1). The trial court may, grant such a motion, if the party in questions mental health/condition is in direct controversy, and the court deems that there is good cause for said examination to be ordered. Russenberger v Russenberger, 623 So. 2d 1244, 1246 (Fla. 1^st DCA 1993).  In cases where the condition in controversy is not physical, a party may move for an examination by a qualified expert as in subdivision (a)(1). The order for examination shall be made only after notice to the person to be examined and to all parties, and it shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.   The state of Florida, also requires that the mental health of the parties be considered in custody determinations under the "best interest of the child” standard Roper v. Roper 336 so. 2.1 654, 656 (Fla. Dist. Ct.App. 1976).

            A person’s mental condition is in controversy if it is directly involved in a material element of the cause of action or defense. A party has been deemed by the courts to have shown good cause for an examination by a clear demonstration that there is a need for expert medical testimony to resolve the material issue. Russenberger v. Russenberger, 623 So. 2d 1244, 1245 (Fla. 1^st DCA 1993.  Good cause may also be demonstrated by evidence that shows the parent has been unable to meet the special needs of his or her child Nobbe v. Nobbe, 627 So 2d 59,60 (Fla. 2d DCA 1993).  Mere conclusory allegations or allegations that a parent is receiving psychiatric therapy or is on medication are not enough to put the parent’s mental health in controversy. Id.  However, if it is demonstrated that a parent has engaged in any type of behavior during the proceedings that constitute a “calamitous event” of the type that renders the psychiatrist-patient privilege inapplicable,  then good cause is established to order a mental examination under Rule 1.360 O’neil v. O’neil, 823 So. 2d 837 (Fla. 5^th DCA 2002).         

Issue 2: When can the Psychiatrist-Patient Privilege be invoked?

Under Florida law, a patient has a privilege to prevent the disclosure of communications or records made for the purpose of diagnosing or treating emotional conditions, unless the communications are relevant to an issue of the patient’s emotional condition in a proceeding in which the patient relies on the condition as an element of his or her claim or defense.  Fla. Stat. 90.503(2), (4) (c)

Allegations of past mental health concerns are insufficient to overcome the privilege, unless it can be shown that the parent’s previous psychological condition is relevant to his or her present condition Schouw v. Schouw, 593 So. 2d 1200, 1201-1202 (Fla. 2d DCA 1992). Merely by requesting to be the designated primary residential primary custodian of the parties’ child did not introduce his or her mental condition as an element of a claim or defense as to waive the privilege O’neil v. O’neil, 823 So. 2d 837, 840 (Fla. 5^th DCA 2002).   However, a parent’s voluntarily commitment to an institution for treatment of his or her mental condition is deemed to have rendered the parent’s mental health at issue and therefore the privilege could not be invoked Critchlow v. Critchlow, 347 So. 2d 453, 455 (Fla. 3d DCA 1977). Another act deemed to be a calamitous conduct and therefore is where a parent attempts suicide during the child custody proceedings.  The courts have stated that such an act puts his or her mental health sufficiently at issue to warrant a finding by that the privilege does not apply (Attorney Ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301 (Fla. 4^th DCA 2001).

            Even if mental health testimony is allowed, the judge is not required to depend on the psychological testimony offered by the party’s experts in an action concerning either parental responsibilities, or timesharing Gordon v. Smith, 615 So. 2d. 843,844 (Fla. DCA 1993).  The judge is allowed to evaluate the credibility of the testimony, and apply his own knowledge and experience in weighing the opinion evidence. Thus, a judge may decline to accept the testimony of an expert called by one of the parties in a contested proceeding. Id.

Conclusion:

            The courts may grant a party’s motion for a psychological evaluation if the party in question’s mental health/condition is in direct controversy, there is good cause for the examination to be ordered, and the evaluation is not protected by the Psychiatrist-Patient Privilege.  Also, in instances dealing with custody, the mental health of the parties is considered in custody determinations under the "best interest of the child” standard.  Even if the testimony is allowed, a judge has the digression to may decline to accept the testimony of an expert.