Shared Parental Responsibility and Sole Parental Responsibility Archives • Sampson Collaborative Law

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Shared Parental Responsibility and Sole Parental Responsibility

Collaborative Divorce, Mental Health Treatment, Parenting Issues, Timesharing & Custody / Michael P Sampson

Parents who “share parental responsibility” retain full parental rights and responsibilities for their child. This means both parents confer with each other to make decisions for their child. See Section 61.046(17), Florida Statutes. In sharing responsibility for decisions, parents generally must communicate with each other. They must try to agree about important decisions. Most parents would do that while together. But when they don’t or can’t agree, options for resolving disagreements include collaborative law practice, mediation, litigation, and other means. Shared Parenting Unless Detrimental The court must order shared parental responsibility unless the court finds it would be detrimental to the child. See Section 61.13(2)(c), Florida Statutes. If the court determines shared parental responsibility would be detrimental, it may order sole parental responsibility. Under “sole parental responsibility,” one parent decides for the child. Section 61.046(18), Florida Statutes. Regarding shared parental responsibility or sole parental responsibility, courts may consider the parents’ desires and grant to one parent ultimate responsibility over specific aspects of the child’s welfare. Alternatively, the court may divide those responsibilities between the parents based on the child’s best interests. Such areas of parental responsibility may include education, health care, and “any other responsibilities that the court finds unique to a particular family.” See Section 61.13(2)(c)2.a., Florida Statutes. A subset of “health care” is mental health treatment for a child. Courts must safeguard a child’s best interest. So judges can’t order blanket ultimate decision-making authority over “all” issues if parents sharing parental responsibility disagree. See McClure v. Beck, 212 So. 3d 396 (Fla. 4th DCA 2017); Seligsohn v. Seligsohn, 259 So. 3d 874 (Fla. 4th DCA 2018); De La Fe v. De La Fe, 332 So. 3d 60 (Fla. 2d DCA 2021); Johnson v. Johnson, 392 So. 3d 798 (Fla. 4th DCA 2024). Instead, to direct ultimate decision-making authority, courts must specify concrete aspects over which a parent will have ultimate decision-making. See also Clarke v. Stofft, 263 So. 3d 84 (Fla. 4th DCA 2019); Louis v. Louis, 324 SO. 3d 11 (Fla. 4th DCA 2021). General Award of Ultimate Say-So Improper Nothing stops a judge from giving a parent final say-so over specific areas if evidence justifies “ultimate responsibility.” See Moses v. Moses, 347 So. 3d 385 (Fla. 5th DCA 2021). But in Moses, the judge went too far awarding mom ultimate decision-making authority over 18 separate areas. Those areas included education, healthcare, and moral and religious decisions. Dad was an active-duty service member forced to retire because of mental and physical ailments. He received an honorable discharge from the military. The Veterans Administration rated him totally disabled. He had a history of alcohol problems. Yet a social investigator and psychological evaluator found no significant concerns about his safely parenting the children. Evidence showed mom uncooperative and uncommunicative with dad about the kids. Absent evidence justifying the trial judge’s broad grant to mom of ultimate say-so, the appellate court reversed and sent the case back to the judge. But how do these principles apply to decisions about a child’s mental health treatment? In the next section, read more about shared parenting and retained consent to mental health treatment. Related Blog Posts

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Florida Law: Each Parent Retains Consent to Mental Health Treatment

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

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. History of Retained Consent to Mental Health Treatment in Florida 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: Parents Exploiting Consent to Child’s Mental Health Treatment in Family Disputes 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 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

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Depressed teenager with head in hands. Florida Collaborative Practice: Clarifying Parents’ Intent About “Mental Health Treatment”

Collaborative Process: Clarifying Intent About “Mental Health Treatment”

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

Florida’s divorce and paternity statutes don’t define “mental health treatment.” When they’re sharing parental responsibility, each parent retains parental consent to mental health treatment. However, when parents define “mental health treatment” and clarify and agree to the scope of “mental health treatment” for their child, they may avoid confusion and future litigation. Parents in collaborative practice may define by agreement “mental health treatment” and a protocol for decision making about mental health treatment. They may explain to the judge their agreement is in their child’s best interests. Judges Should Respect Parents’ Agreements Clarifying Intent About “Mental Health Treatment” Judges have an independent duty to safeguard a child’s best interests, even when parents agree on how they’ll raise their child. Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996); Bell v. Broch, 230 So. 3d 1252 (Fla. 4th DCA 2017); Vinson v. Vinson, 282 So. 3d 122 (Fla. 1st DCA 2019). These principles apply to parents’ agreements clarifying what they mean by “mental health treatment.” Parents’ Agreements In Their Child’s Best Interests Florida cases hold the judge has no free hand to disregard parents’ wishes. Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958). Florida law favors settlement agreements. By collaborative contracts, parents can agree on creative solutions even a judge might be unable to order if they didn’t agree. Therefore, unless there’s a valid reason related to the best interest of the child or a finding the parents’ agreements were involuntary or were the product of fraud, a court should respect and uphold them. For example, in Griffith v.Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003), there wasn’t enough evidence to support the trial judge’s disdaining parents’ mediation agreement. Their agreement resolved alimony, child support, and custody. Yet the court conducted post-mediation hearings to determine if the agreement was in the children’s best interest. Then, the judge concluded the agreement wasn’t in the children’s best interest. So the trial court cut the doctor-mom’s agreed-on child support obligation. And, in Williams v. Sapp, 255 So. 3d 912 (Fla. 1st DCA 2018), a trial judge improperly modified parents’ mediation agreement for mom to have sole parental responsibility. But there was no notice or opportunity for mom to be heard. The appeals court held the trial judge must either approve the parents’ agreement as they negotiated it or, if the court can’t or won’t approve the agreement, must conduct a properly-noticed evidentiary hearing. Best-Interests – Vinson v. Vinson In contrast, such a hearing took place in Vinson v. Vinson, 282 So. 3d 122 (Fla. 1st DCA 2019). There, a mom challenged the trial judge’s adoption of a parenting plan to which she and dad agreed. They initially agreed on equal timesharing and child support. The court approved it and entered a temporary order. Later, instead of proceeding with dad’s deposition, the parents and their attorneys reached a new timesharing agreement. Dad would have majority time and mom would have summers, split major holidays, and have every three- or four-day weekend. Under oath before the court reporter, both parties confirmed they agreed they understood and were freely and voluntarily signing the agreement. Mom had buyer’s remorse. Three days before the final hearing, her attorney withdrew by agreement. Mom moved to set aside the custody agreement. She alleged she’d been fearful and anxious and felt pressured and coerced when she agreed to the newly-stipulated parenting plan. Mom Waives Her Attorney-Client Privilege After mom waived her attorney-client privilege, with a new attorney representing her, she and her former attorney testified about their communications by email and in person, which preceded the custody agreement. The former attorney testified her client never expressed confusion about the terms of the newly-stipulated custody agreement. Moreover, mom had pressed her attorney to make the timesharing offer for dad to have majority time, because she – a working nurse – said it was in the daughter’s best interest. The Trial Judge Finds No Reason to Reject, So Adopts the Parents’ Agreement After hearing the evidence, the trial judge found the record “devoid of any evidence that would suggest the best interest of the child will not be served by the agreement that was reached by the parties.” The judge thus denied mom’s motion to set aside the agreement. On appeal, the court rejected mom’s claim the trial judge had abdicated its job to consider the best interests of the child by adopting the parents’ timesharing agreement. No Abdication When Judge Allows Best Interests Evidence In so doing, the court distinguished cases mom cited. Higgins v. Higgins, 945 So. 2d 593 (Fla. 2d DCA 2006), and Lane v. Lane, 599 So. 2d 218 (Fla. 4th DCA 1992). In those cases, unlike in Vinson, before the custody orders were entered, there had been no opportunity for the parents to present evidence of best interests and for the judge to ascertain them. A similar failure to and reversal took place in Sparks v. Sparks, 75 So. 3d 861 (Fla. 1st DCA 2011). There, the judge improperly denied a dad an evidentiary hearing on his assertions the parent’s agreements about custody and visitation weren’t in the child’s best interests. Read more about how parents may clarify their intent when they define and reach agreements about their child’s mental health treatment. An important step is enlisting court review of parent’s custody agreements. Invite the judge, safeguarding the child, to take evidence and make findings about the child’s best interests. The Florida collaborative process lets parents harness their power to contract and reach creative solutions. See When Clients Retain Their Power: The Collaborative Law Process. For more information about the collaborative process, contact Sampson Collaborative Law. Related Blog Posts Parental Responsibility & Decision Making Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers

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Informed Consent Mental Health Requirements Florida shade photo of a woman Callie Gibson Unsplash

Florida Mental Health Providers & Informed Consent

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

This post summarizes Florida mental health informed consent rules for mental health providers. Florida parents who divorce typically share parental responsibility. When they do, either may consent to mental health treatment for a child. Each parent remains their child’s natural guardian. See Section 744.301(1), Florida Statutes. As summarized in the table below, mental health treatment providers generally may accept informed consent by only one parent to “mental health treatment.” A mental health provider’s ability legally to accept informed consent from only one parent may differ from what may be in the child’s best interests. Moreover, a mental health provider’s accepting one parent’s consent — even when the provider can — doesn’t always protect the provider. When parents disagree about initiating, continuing, or ending their child’s mental health treatment, they may cause the provider heartache. For example, the provider may have to hire a lawyer and lose substantial time away from practicing to defend attacks in custody disputes. And, the parent who didn’t consent may complain to the mental health provider’s regulating board. Even more troubling, a child caught in the middle who needs mental health treatment may not get it timely or effectively. In Collaborative Divorce, however, parents have alternatives. They may anticipate and reach agreements about their child’s mental health treatment. Florida’s mental health treatment providers, and their professions’ informed consent requirements, include: Related Blog Posts Shared Parental Responsibility and Sole Parental Responsibility Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals What If Parents Disagree About Child’s Mental Health Treatment?

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