Florida law treats consent to a child’s “mental health treatment” differently from other shared major parental decisions.
In 2016, Florida law changed to mandate certain provisions in parenting plans. See Laws of Florida 2016-241.
Most parenting plans say parents will share parental responsibility. For such plans, section 61.13(2)(b)3., Florida Statutes, requires providing that either parent retains consent to mental health treatment for their child.
Moreover, omitting from a parenting plan or final judgment that either parent alone may provide such consent is legal error. For example, see E.V. v. D.M.V.H., 273 So. 3d 1132 (Fla. 2d DCA 2019) (parenting plan sufficiently provided either parent may consent to treatment for child). Compare that case with Lennon v. Lennon, 264 So. 3d 1084 (Fla. 2d DCA 2019). In Lennon, the court sent the case back to the trial court to include the missing “retained consent” provision in a final judgment.
Failure to Provide for Unilateral Consent to Mental Health Treatment is Reversible: Pukin v. Pukin.
Most recently, the Sixth District Court of Appeal followed Lennon. In Pukin v. Pukin, Case No. 6D23-219 (Fla. 6th DCA June 12, 2023), the court sent the case back to the trial judge to fix a Parenting Plan. The Parenting Plan failed to provide either parent may consent to mental health treatment for the children.
Amended 61.13(2)(b)3.a Lets a Judge Provide for Joint Consent to Mental Health Treatment.
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 stated otherwise in the parenting plan.
See Laws of Florida Ch. 2023-213; CS for CS for SB 226 and Bill Analysis of the Committee on Rules. This means a judge may specify in a parenting plan that each parent does not retain consent to the child’s mental health treatment. For example, even when a judge orders shared parental responsibility over health care decisions, a judge may find it’s not in the child’s best interest for a parent to have that right.
What Happens When Parents Disagree About Consent to Mental Health Treatment?
Think about how consent to mental health treatment plays out in practice. A modification case illustrates how parents may litigate when both disagree about consent to therapy.
In Puhl v. Puhl, 260 So. 3d 323 (Fla. 4th DCA 2018), parents agreed on a parenting plan that gave the mom ultimate decision making when the dad and she couldn’t agree. Dad alleged mom took the child to therapy the child didn’t need without first consulting him. But, before entry of final judgment, a medical professional diagnosed the child with the condition for which mom sought treatment.
The Court held mom’s taking the child to therapy without first consulting dad didn’t support modifying the parenting plan. The facts supported no finding of a “substantial, material, and unanticipated change in circumstances” occurred.
Extraordinary Burden for Modifying Parenting Plans
This “substantial change” burden for modification for modifying parenting plans is difficult to carry. But, in Florida collaborative divorce, parents have options. They may agree to a different burden for modification.