Florida Law: Each Parent Retains Consent to Mental Health Treatment

Parents sitting at breakfast table with children and dog. Each parent retains consent to mental health treatment in Florida divorce when they share parental responsibility.

In 2016, Florida law changed to mandate, in parenting plans designating shared parental responsibility, that either parent retains consent to their child’s mental health treatment. See Section 61.13(2)(b)3., Florida Statutes, amended by Laws of Florida 2016-241.  Analysis of the final version is available here.

A parenting plan that doesn’t provide for either parent to consent to the child’s mental health treatment is legally deficient. See Hernandez v. Mendoza, 346 So. 3d 60 (Fla. 4th DCA 2022) (parenting plan that provided for shared parental responsibility over health care decisions failed to provide that either parent could consent to mental health treatment for the children). See also Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th DCA 2020).

2023 Amendment to Section 61.13 (Effective July 1, 2023)

Unless a parenting plan states otherwise, either parent may consent to mental health treatment for a child. An amendment to section 61.13(2)(b)3.a., Florida Statutes effective July 1, 2023, provides as a minimum requirement for a parenting plan approved by the court:

If the court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for the child unless state otherwise in the parenting plan.

See CS for CS for SB 226 and Bill Analysis of the Committee on Rules. See Laws of Florida, Ch. 2023-213.

In practice, however, each parent’s reserved right to consent to a child’s mental health treatment, with no prior obligation to confer with the other parent, invites confusion, presents challenges, and leads to disputes. To forestall costly and rancorous modification or enforcement actions, parents, courts, and collaborative practitioners may explore workable solutions.

How did this change in Florida parenting plan law come about? The Florida Legislature intended the amended language would help parents sharing responsibility for decision making after divorce or separation.

Mental health professionals identified challenges in providing mental health treatment or counseling to children after divorce or separation. The Florida House Civil Justice Subcommittee drew guidance from a University of North Carolina, School of Social Work study. See Souders, T., Strom-Gottfried, K., & DeVito, D., Theimann Advisory: FAQ on Services to Minors of Divorced Parents, available here.   

North Carolina Mental Health Provider Study

The 2009 North Carolina study asked mental health providers:

  1. If a parent brings a minor in for counseling, must the clinician/agency inquire about another parent? Must they ask if the other parent has consented to treatment? Does this change if payment/insurance is in the name of another adult?
  2. Must the clinician/agency secure documentation that verifies custody? How frequently should the clinician/agency request documentation? What documentation is sufficient?
  3. How is informed consent executed with the other parent?
  4. What difference does it make if the parents have joint custody or one has sole custody?
  5. When both parents have custody, one parent consents to treatment, but one refuses, what are the clinician’s/agency’s responsibilities?
  6. What if the parent presenting the child for service explicitly requests the other parent not be contacted? What if the parent states a compelling reason (a history of explosive anger, abuse, instability, or paranoia)?
  7. Must the clinician/agency share information with the other parent about the child’s care? Does this obligation differ if the parent requesting information does not have majority time sharing?
  8. If a grandparent (or other nonparent relative) brings a minor in for counseling, must the clinician/agency inquire about the parent? What if the parent is incarcerated, resides in another state, is hospitalized, or is otherwise unavailable?
  9. When can the clinician/agency treat minors without parental consent?

The Florida House Civil Justice Subcommittee described parents using consent to a child’s mental health treatment as leverage:

Obtaining the consent of both parents often involves navigating emotionally-charged and history-laden territory. This can create a tug-of-war between divorced or separated parents who are, in effect, using their child as leverage in their interpersonal dispute. This seems to arise most often when children need in-patient or full-day treatment for psychiatric issues related to depression, often caused by the family discord.

Quoting Ann Bittinger, Legal Hurdles to Leap to Get Medical Treatment for Children, THE FLORIDA BAR JOURNAL (January 2006), p. 24, available here.

Florida Circuit Judge R. Thomas Corbin lamented about shared parenting and decisions about a child’s mental health:

In cases in which a settlement agreement or a judgment said the parents will “share parenting”, family judges are frequently asked in post judgment motions to decide if a child should take medication for ADHD, depression, a bipolar condition, etc.,… because the parents cannot “confer with each other” and “share” these parenting decisions and neither one has any authority to make the decision alone because the order in their case requires them to “share parenting decisions.”

However, there is no authority that a judge in a Chapter 61 case has the power to make such parenting decisions. A Chapter 61 judge has no authority to become a “super parent.”

See The Honorable R. Thomas Corbin, A Parenting Plan Must Include a Parental Responsibility Order and a Time-Sharing Schedule, The Florida Bar Family Law Section: Commentator (Fall 2010), p. 18, available here.

On each parent’s retained consent to mental health treatment, the Florida Senate Committee on Rules, discussing companion Senate Bill S/CS/SB 794, said: “The scope of what is meant by mental health treatment, however, is not defined.”  See Analysis found here.

The Opportunity to Avoid Future Disputes About Child’s Mental Health Treatment

In shared parenting, each parent retains consent to the child’s mental health treatment. That can lead to problems when the parents disagree, however.

As parents and collaborative practitioners work through the issue, rather than leave to future judicial or legislative interpretation, they may benefit by precisely stating in the parenting plan what they mean by “mental health treatment.”

Stating Intent Precisely: Child-Counselor Communications: Bentrim v. Bentrim, Case No 4D21-1303 (Fla. 4th DCA March 9, 2022)

Precision in drafting agreements regarding a child’s mental health treatment is beneficial. A related issue is ambiguity about access a parent has to records of the child’s mental health treatment.

For example, consider the March 2022 Bentrim case. For 11 years after they divorced, the Bentrim parents fought in court. The court ordered them to agree on a counselor for their daughter. The order directed that all communications between the child and her therapist would remain confidential, “as section 90.503, Florida Statutes provides.” 

Mom gave dad three potential counselors to consider. He told her he preferred a social worker the child had been seeing. Yet she took the child to another counselor, a psychologist, without dad’s prior knowledge or consent. Dad found out and was unhappy.

The social worker testified mom emailed her and said she didn’t want the daughter to keep seeing her, and asked for notes of the counseling sessions. The counselor, who knew nothing of the court order about confidentiality, sent her session notes to both parents. 

At dad’s request, the court held mom in contempt for requesting and getting the child’s confidential records. But the appeals court reversed, because the order didn’t explicitly bar either mom’s or dad’s ability to request their child’s counseling notes.

The Fourth DCA discussed each parent’s rights to request records and interplay with the child’s psychotherapist-patient privilege, which each parent may assert. Section 90.503, Florida Statutes. Because the trial judge could have, but hadn’t, “clearly and precisely” banned mom from requesting the social worker’s records, the court reversed the contempt order. Bentrim v. Bentrim, 335 So. 3d 706 (Fla. 4th DCA 2022).

Harness Collaborative Contract Power: Consent to Mental Health Treatment

As the above discussion illustrates, even when each parent retains consent to a child’s mental health treatment, nasty court fights can happen. To avoid that, divorcing parents may take opportunities in the collaborative process to agree to creative solutions about their child’s mental health care.

In a Florida Collaborative Divorce, they may harness their power to contract and provide for their child’s mental health treatment. Read examples of language they might consider.

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