Mental-Health Issues in Florida Family Law.

• Author: Kay, Sarah E.
• Position: 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...