S. Moore Law PLLC 2025-03-31T12:36:35Z https://www.smoorelaw.com/feed/atom/ WordPress /wp-content/uploads/sites/1301200/2020/08/cropped-favicon-min-1-32x32.png On Behalf of S. Moore Law PLLC https://www.smoorelaw.com/?p=46886 2023-08-14T12:00:30Z 2020-09-03T12:55:52Z

Sometimes you need to protect yourself – and your children – through requesting a court-ordered psychological evaluation for your spouse. Asking the court for help is possible but requires some work on the front end. Read below on the varied opinions of different Florida courts and what you can do to get the best outcome possible. In Florida family law, courts have two main ways in which they can compel a psychological evaluation: a social investigation pursuant to Fla. Stat. § 61.20, or a civil procedure request pursuant to Fla. R. Civ. P. 1.360 and its corresponding Family Law Rule 12.360. Parenting dispute in general When there is a parenting dispute, or trouble establishing a parenting plan, Florida Statute 61.20 allows the court to order a social investigation and study to cover all “pertinent details” for all family members who are involved. The investigation is conducted by a court staff member or by the Department of Children and Families. Two hurdles: “good cause” and “in controversy” If there is a psychological condition that is the subject of competency or ability to care for children, Florida courts look to the Florida Rules of Civil Procedure 1.360 and the companion Family Law Rule 12.360, which allows an examination when the condition is in controversy. There must be a showing of good cause in order for a court to order this exam, and the burden is on the party who requests it. The concept of a “showing” has been debated and is not clearly defined. Courts have defined “good cause” as evidence that the parent has been unable to meet the needs of the child. According to the First DCA in S.N. v. State Dep’t of Health & Rehab. Servs. , “This finding may be based on the parent’s past conduct or behavior regarding the child, or on information developed through interview of the parent by a skilled person which indicates a need for psychiatric or psychological evaluation of the parent to assist in training the parent to meet the child's special needs.” Do you need an evidentiary hearing? For example, in Pariser v. Pariser , a Florida case out of the Fourth District Court of Appeal (DCA), the court held that a judge does not necessarily need to have an evidentiary hearing in order to find that showing of “good cause.” However, some other appellate courts have been critical of the lack of written findings. In Wade v. Wade, a Florida case out of the Third DCA, the court did not find that the judge’s written order adequately addressed whether the mental condition was even in controversy. It’s pragmatic to ensure you are armed with everything you’ll need in order to succeed, so it’s likely your attorney will advise you to go through with a hearing. It is not necessary, though extremely helpful, to have an expert witness who can testify on your behalf as well. Remember, the burden of proof is on the person requesting the evaluation. Is mental competency always in controversy? It is certainly an argument worth making. In Gordon v. Smith, the Fourth DCA held that granting or denying the order is a discretionary act and, although the requesting party had an expert who testified, aside from that testimony, the court has the independent authorization in the statute 61.13(3) when in a child custody proceeding. Florida Statute 61.13(3) outlines the factors a court may consider, which includes the psychological conditions of the parents and the child(ren). Because they are considered directly relevant in child custody cases by virtue of this statute, the trial court is empowered to order psychological evaluations. What are examples of courts approving exams? There are a few other cases in Florida jurisprudence that outline some of the ways in which the court deemed a psychological evaluation necessary in a child custody case. Gordon v. Smith, 615 So. 2d 843 (Fla. 4th DCA 1993), where the Fourth DCA held that a mother’s accusation of sexual abuse was a foundation for a psychological examination of both parents as well as the child. J.P. v. Dep't of Children & Families, 855 So. 2d 175 (Fla. 1st DCA 2003), where the First DCA held that the trial court was within its legal authority when ordering a psychological examination for the father since there was evidence he had participated in domestic violence and had a criminal history with violent incidents. Bailey v. Bailey, 176 So. 3d 344 (Fla. 4th DCA 2015), where the Fourth DCA held that a Baker Act with a resulting involuntary hospitalization demonstrated good cause that his mental condition was in controversy and a psychological evaluation was warranted. If you believe that you, your spouse, or your children might need a psychological evaluation in order for the court to safely and judicially order a parenting plan with regard to your divorce proceeding, you should discuss this with an attorney who can help you navigate the complexities of the court and assist you with your family’s needs.]]> On Behalf of S. Moore Law PLLC https://www.smoorelaw.com/?p=46882 2023-08-14T12:00:36Z 2020-08-28T17:50:35Z

Do I qualify to obtain a divorce in Florida? It’s first important to establish whether or not you qualify to file for a divorce in Florida. In order to be able to file for divorce, one of the parties to the marriage must have lived in Florida for at least 6 months. See Fla. Title VI Ch. 61.021. Additionally, you must file in the county where you reside. Please note that your individual court might have additional requirements or forms, so always check your local court’s website. If you’re unsure which court serves your county, you can find a list of court’s with their corresponding counties here. How can I start the process of my divorce? A divorce is initiated by filing a petition for divorce as well as a summons with your local court’s clerk. See Fla. Title VI Ch. 61.043. Some counties provide pre-printed forms that the petitioner can fill in with his or her specific information. These forms usually say “In re the marriage of…” The summons must be delivered to your spouse, who can waive formal service by filing an “Answer and Waiver of Service”. If your spouse does not waive service, you can check with your local court to see if the Sheriff’s department will serve your spouse with the petition. When filling out the petition, note that specific misconduct of one or more spouses is not necessary to be granted a divorce in Florida. Instead, a divorce can be granted upon a pleading that a marriage is “irretrievably broken”. See Fla. Title VI Ch. 61.052. Also keep in mind that this petition will form the backbone of your divorce claim. As such, it is important to address EVERY topic you want the judge to address, including division of assets and debts, child custody and child support, and any alimony requests. If the responding party agrees to the terms you’ve laid out in your petition, that the marriage is “irretrievably broken”, and there are no minor children involved, then the judge has discretion to grant the divorce upon these pleadings. Fla. Title VI Ch. 61.052. One last note about the initial filings: When you file the initial petition and summons, the clerk will likely hand you an anonymous questionnaire. You must complete and file this questionnaire in order to obtain a dissolution of your marriage. What if my spouse doesn’t agree to the divorce or the asset division I proposed? The divorce process is a little less streamlined if your spouse doesn’t agree to dissolving the marriage via the terms outlined in your petition. In this scenario, the judge has all of the discretion to decide the terms of your divorce. Fortunately, the baseline for asset division begins with an assumption that all non-marital property should return to its owner and all marital property should be divided equally. Fla. Title VI Ch. 61.075. Any justification for a non-equal distribution will come from factors listed in Fla. Title VI Ch. 61.075, including considerations such as each spouse’s contributions to the marriage, each party’s financial situation, and the length of the marriage. For a list of which assets qualify as marital or nonmarital property, see part (6)(a-b) of Fla. Title VI Ch. 61.075. What if I want alimony? The court has discretion to grant alimony to either party in a divorce. See Fla. Title VI Ch. 61.08. This is the biggest area in which the court will entertain any arguments about infidelity. However, the court will ultimately make a determination of whether one party has an actual need for alimony and whether the other party has the actual ability to pay it. Once the court makes this determination, it will consider several factors to determine the amount of alimony that is appropriate. These factors can be found in Section (2)(a-j) of Fla. Title VI Ch. 61.08. What if we have minor children? Issues surrounding child custody and child support will likely be the most contentious aspect of your divorce. In order for a court to have jurisdiction to make a custody determination, Florida must be the home state of the child, with some limited exceptions. This means that if you are living in Florida but your child lives in another state with your spouse, then a Florida court does not have jurisdiction to make a child custody determination. See Fla. Title VI Ch. 61.514. Child custody is determined through an approved parenting plan. Parties can agree on a parenting plan, or the court can determine a parenting plan based on factors concerning the child’s best interest, which are laid out in Fla. Title VI Ch. 61.13. If the court is determining shared parenting time, it begins with an assumption that each parent should share equal time with the child, unless this arrangement would be detrimental to the child because of issues such as domestic violence or child abuse. Are there other resources available? The Florida Family court resources website is a great place to start when initiating the process of marriage dissolution. Here you’ll find basic instructions about what to expect and various forms that you may need to file for your divorce. You’ll also find the Family court guiding principles, which will give you an idea about what goes into the judge’s decisions throughout the divorce process. Conclusion Now that you know the basic principles for getting a divorce in Florida, you understand the importance retaining experienced legal counsel. Contact us today at [nap_phone id="LOCAL-CT-NUMBER-3"] to schedule your consultation.]]>