ALAN VANDER SCHOUW, PETITIONER,
v.
ANNETTE VANDER SCHOUW, RESPONDENT

Fla. 2d DCA | 1992-02-19
No. 91-03801
SCHOONOVER, C.J., HALL and THREADGILL, JJ., concur.
593 So. 2d 1200 Florida District Court of Appeal, Second District (1992) Negative Treatment
Cited by 30 cases

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Synopsis

In a dissolution of marriage case involving child custody disputes, the Florida Second District Court of Appeal reviewed an order requiring the husband to undergo a psychological evaluation and release his psychological records. The court held that neither the evaluation nor the records disclosure was warranted because the wife's allegations were outdated and there was no showing that the husband was unable to meet the children's special needs.


Holding

The court held that the trial court departed from the essential requirements of law by ordering both the release of the husband's psychological records and a court-ordered psychological examination. Mere allegations of mental instability are insufficient to overcome the psychotherapist-patient privilege, and court-ordered psychological examinations should only be ordered upon a showing of good cause—evidence that the parent has been unable to meet the child's special needs.


Headnotes

[1] A party's mental health records are protected by the psychotherapist-patient privilege unless the party relies on their mental or emotional condition as an element of the…

[2] Mere allegations of a parent's mental instability are insufficient to place their mental health at issue and overcome the psychotherapist-patient privilege in a child cus…

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Key Quotes

“mere allegations that a parent is mentally unstable are not sufficient to place that parent's mental health at issue and overcome the psychotherapist-patient privilege”

Establishes the standard that psychotherapist-patient privilege cannot be overcome by mere allegations of mental unfitness in custody cases

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Facts & Procedural History

The husband and wife were engaged in a dissolution of marriage action, both seeking primary residential custody of their two minor children who were r…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The petitioner, the husband in a dissolution of marriage action, seeks a writ of certiorari reviewing an order which granted the wife’s motion to compel a psychological evaluation of the husband and for release of the husband’s psychological records.

First, the husband contends that the order directing the release of his psychological records departs from the essential requirements of law because it violates the psychotherapist-patient privilege found in section 90.503(2), Florida Statutes (1991), which provides:

(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of his mental or emotional condition, including alcoholism and other drug addiction, between himself and his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

Section 90.503(4)(c) states:

(4) There is no privilege under this section:
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

In the action below, both parties have requested to be the primary residential parent of the parties’ two minor children. The children are presently residing with the husband. Both parties have brought into question the other’s psychological fitness to be the custodial parent. While the mental health of a parent in a child custody case is relevant, mere allegations that a parent is mentally unstable are not sufficient to place that parent’s mental health at issue and overcome the psychotherapist-patient privilege. Roper v. Roper, 336 So. 2d 654, 656 (Fla. 4th DCA 1976). The only other allegations, the wife’s claims regarding the husband’s mental condition in 1986, are outdated and not sufficient to overcome the privilege.

What is relevant to the trial court’s determination regarding child custody is the parties’ present ability and condition. There was no showing by the wife that the husband’s prior psychological records would contribute to such a determination. Therefore, we find that the trial court departed from the essential requirements of law in requiring the release of the husband’s psychological record.

Second, the husband contends that the court also departed from the essential requirements of law by ordering the husband to submit to an independent psychological examination. A court ordered psychiatric or psychological examination is the suggested method for balancing the court’s need to determine the parents’ mental health as it relates to the best interest of the child, and the need to maintain the confidentiality between a treating psychotherapist and the patient. McIntyre v. McIntyre, 404 So. 2d 208 (Fla. 2d DCA 1981). However, such examinations are not automatic and should only be ordered upon a showing of good cause — evidence that the parent has been unable to meet the special needs of the child. Williams v. Williams, 550 So. 2d 166 (Fla. 2d DCA 1989).

Here, although the husband had custody of the children for at least six months prior to the hearing, there was no evidence that the husband was unable to meet the children’s needs. In fact, all of the wife’s allegations regarding the husband’s inability to parent stem from behavior some five years ago. Therefore, we find that there was no factual basis before the court to warrant a court ordered psychological examination.

Accordingly, we find that the order presented for review departed from the essential requirements of law, and quash the order. SCHOONOVER, C.J., HALL and THREADGILL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Attorney AD Litem FOR D.K. v. The Parents OF D.K., 780 So. 2d 301 (Fla. 4th DCA 2001)
    …ination of the parent or parents. In this way, the trial court obtains essential information without interfering with the psychotherapist/patient confidentiality privilege. See Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996); Schouw v. Schouw, 593 So. 2d 1200 (Fla. 2d DCA 1992). Certainly, the evidence of the child’s relationship with her father is important in determining what is in the best interest of the child and whether to award primary physical residence to the father. Through the appointment of…
  • Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996)
    …sufficient to place the custodial parent’s mental health at issue so as to overcome the privilege.” Oswald v. Diamond, 576 So. 2d 909, 910 (Fla. 1st DCA 1991). See also Mohammad v. Mohammad, 358 So. 2d 610, 613 (Fla. 1st DCA 1978); Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992); Peisach v. Antuna, 539 So. 2d 544, 546 (Fla. 3d DCA 1989); Roper v. Roper, 336 So. 2d 654, 656 (Fla. 4th DCA 1976), cert. denied, 345 So. 2d 426 (Fla.1977). By the same token, the custodial parent’s denial of allegations of…
  • O'Neill v. O'Neill, 823 So. 2d 837 (Fla. 5th DCA 2002)
    …rent is sufficiently at issue to warrant finding no statutory privilege exists.”1 D.K., 780 So. 2d at 309. “What is relevant to the trial court’s determination regarding child custody is the parties’ present ability and condition.” Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d DCA 1992). By seeking custody or by seeking to retain custody, a parent does not make his or her mental condition an element of the claim or defense. McIntyre v. McIntyre, 404 So. 2d 208, 209 (Fla. 2d DCA 1981). Moreover, one party d…

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