Mental-Health Issues in Florida Family Law.

AuthorKay, Sarah E.
PositionPart 1

The Centers for Disease Control and Prevention (CDC) reports that there were more than 4.8 million visits to emergency rooms for mental, behavioral, and neurodevelopmental disorders as the primary diagnosis in 2017. (1) In 2015-2016, there were an estimated 38 million visits per year to non-federally employed, office-based providers specializing in psychiatry in the United States. (2) It is estimated that one in five adults in the U.S. experience mental illness and nearly one in 25 adults in the U.S. live with a serious mental illness. (3) Intentional self-harm was the 10th leading cause of death in the U.S. in 2016 and 2017. (4) The World Health Organization reports, "The burden of mental disorders continues to grow with significant impacts on health and major social, human rights and economic consequences in all countries of the world." (5)

Given the prevalence (6) of mentalhealth issues, (7) it is unsurprising that they often play a role in family law (8) cases. A parent's mental health is one of the factors that a Florida fact finder is required to consider when evaluating "the welfare and interests of the particular minor child and the circumstances of that family" to establish or modify parental responsibility and create, develop, approve, or modify a parenting plan. (9) A party's "physical and emotional condition" is one of the factors a Florida fact finder is required to consider when determining a request for alimony or maintenance. (10) A person's mental competence can affect his or her ability to enter into a contract. (11)

So, how much of a role does a litigant's mental health play in a family law case? How much should it play? As is often heard in law school classes, the answer is: It depends.

Defining Mental Health

The U.S. Department of Health and Human Services offers the following definition (12) of the term "mental health":

Mental health includes our emotional, psychological, and social well-being. It affects how we think, feel, and act. It also helps determine how we handle stress, relate to others, and make choices. Mental health is important at every stage of life, from childhood and adolescence through adulthood.

Over the course of your life, if you experience mental health problems, your thinking, mood, and behavior could be affected. Many factors contribute to mental health problems, including:

* Biological factors, such as genes or brain chemistry

* Life experiences, such as trauma or abuse

* Family history of mental health problems

Mental health problems are common, but help is available. People with mental health problems can get better and many recover completely.

There are numerous mental-health disorders recognized by the American Psychiatric Association, (13) including, but not limited to attention-deficit/hyperactivity disorder (ADHD), eating disorders, internet gaming disorder, schizophrenia, sleep-wake disorders, social communication disorders, and substance-related and addictive disorders. 14 Each disorder has its own unique symptoms; (15) and, while persons must manifest certain symptoms to obtain a diagnosis, symptoms often manifest uniquely in each person experiencing the disorder. (16) The wide breadth of disorders and symptoms have given rise to myths about mental health and mental-health disorders (17) and a resulting poor understanding among the general public of mentalhealth issues and their impact on society. (18) This creates a great risk of misunderstandings, misconceptions, and myths spilling into family law litigation.

This boils down to a key practice point for family law practitioners: When a client suggests that the client or the opposing party may be experiencing mental-health issues, that should be the beginning of the inquiry and not the end. Just because a party has been diagnosed with bipolar disorder does not automatically translate into that person being violent, unemployable, or unable to parent his or her child. (19) The Florida Rules of Professional Conduct require family law practitioners to provide competent representation to their clients. (20) One of the core duties an attorney owes to his or her client is to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." (21) This should include familiarity with facts about mental-health issues and intervention options, which may be derived from performing research on the mental-health issue, engaging a mental-health professional to assist, or, with the client's consent, associating with, or recommending, a more qualified attorney. (22) What it should not include is working under assumptions, presumptions, or myths. (23)

There are four core inquiries a family law 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 addresses each core inquiry. The first part addresses the first inquiry. The second part addresses the final three inquiries.

First Inquiry: Is Competency an Issue?

Florida law recognizes the importance of a person's ability to understand the transactions and contracts to which he or she is a party. (24) This concept is often litigated in estate matters. (25) Florida law also recognizes the importance for a litigant to be able to understand and actively participate in the legal proceeding to which he or she is a party. This concept is most widely recognized in criminal proceedings. 26 Both these concepts exist in family law as well.

What additional steps should family law practitioners take when a mental-health issue may be affecting a litigant's competency will depend on whether that litigant is the practitioner's client or the opposing party.

* Guardianship--Florida courts have the inherent power to appoint a guardian ad litem to represent a mentally incompetent litigant or "ward" in pending litigation. (27) Florida law has an entire statutory chapter dedicated to the court's powers to appoint a representative to act on behalf of a person who has been found wholly or partially incompetent. F.S. Ch. 744 outlines the powers and duties of the court, the guardian(s), and the ward in the event a guardianship may be needed or established. While the details of guardianship are beyond the scope of this article, the family law practitioner should be aware that there are various types of guardianships available including limited, plenary, ad litem, and advocate. (28) A family law practitioner unfamiliar with guardianship laws who believes that a guardian may be needed for his or her client, or may have a guardian involved in the litigation, should engage in the necessary research to obtain competence in the matter or consider consulting with an experienced guardianship attorney. (29)

* Competency of a Party and...

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