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Failure to Foster Relationship with Child’s Father Not Grounds for Mandating Psych Evaluation of Mother

Failure to Foster Relationship with Child’s Father Not Grounds for Mandating Psych Evaluation of Mother 

A Miami divorce attorney can be an invaluable ally throughout the entire divorce process.

Psychological and physical evaluations can be important tools for courts as they analyze a parent’s fitness. The law, however, also maintains several hurdles on the permissibility of such examinations because of their invasive nature. The case before a court must implicate the parent’s mental or physical condition, and the parent must be on notice of the potential of an evaluation before the court may order such a step. In a recent case from southwest Florida, a mother’s appeal allowed her to escape such an evaluation when the 2nd District Court of Appeal ruled that her case did not meet either of the required criteria.

As part of Jacqueline and Jeffrey Russell’s divorce, the court awarded primary residential custody to the mother and issued a time-sharing order. At a hearing in late October 2013, the court discovered that the father had not seen his daughter in more than four months. The father expressed his desire to see his child, but he also stated that he did not want to force his daughter to visit him.

The trial court assumed that if the mother was supportive of maintaining the child’s relationship with her father, the visits would be occurring in accordance with the time-sharing order. As a result, the court ordered the mother to undergo a psychological evaluation, but it made no findings of fact as part of the order. The mother appealed.

The appeals court agreed that the psychological evaluation order was improper. Civil Procedure Rule 1.360 states that an evaluation may only occur if the party’s condition is at issue in the case and good cause exists for ordering the examination. To be at issue, a party’s mental condition must be a “material element of the cause of action.” Good cause means that the evaluation was necessary to protect the well-being of the child. Both were lacking in the Russell case.

The parties were only in court because the wife filed a group of procedural motions. The wife’s mental state was not an inherent element of those motions. The appeals court also pointed out that the record in the case did not contain allegations that the wife had mental stability issues, and the court made no findings regarding her mental condition. The mere fact that the wife was not promoting her daughter’s relationship with the child’s father was not, by itself, enough to raise an issue regarding the wife’s mental state.

Given the invasiveness of a mandatory psychological or physical evaluation, the law creates clear restrictions on required examinations. For an examination order to be valid, the person who would be evaluated must first be placed on notice that his or her mental condition is at issue in the case. This mother had no such notice, which made the order a “departure from the essential requirements of the law.”

The Russell case bears many similarities to a ruling in the much-publicized divorce case of Miami Heat star Dwyane Wade. Last year, the 3d District Court of Appeal threw out a lower court’s order requiring Wade’s ex-wife, Siohvaughn, to undergo a psychological evaluation. That court ruled that the wife’s very public expression of her opinions regarding the divorce case was not sufficient to place her mental condition at issue in the case. In both cases, the appeals courts noted that the trial courts returned the children immediately to the custody of their mothers, indicating that the trial courts did not view the mothers as dangers to their children and, as a result, good cause for the examination was not present.

 How We Can Help

If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed family law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at


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