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People involved in highly contested custody cases are often led like sheep to slaughter to a battery of psychological exams. Unbeknownst to the majority, such exams are against the law!
I have been privileged to contest such an investigation of the validity of such an exam and have done extensive research to further the petitioner's argument. Although this is a Florida Case and relied heavily on the A.2d and So.2d citations, the uncontroverted landmark ruling in this issue is Schlagenhauf v. Holder, 379 U.S. 104. Since this is a federal ruling, states must conform to "Rule 35(a)" of the Federal Rules of Civil Procedure and should have conforming rules.
Please note that a mere contestation of custody is not grounds for any such exam above and beyond a standard custody evaluation. Do not be a sheep. Stand on your ground . It has been held that psychological evaluations are invasive and may potentially harmful to the one being evaluated. That citation is further down.
Even thought this is directed towards a Florida Case, I am in the 9th judicial district and similar rules apply. This jurisdiction is foreign to me - but same rules apply though through different cases.
What follows is an actual petition submitted to a court in Fl. Given the information that I have - I deemed it true and factual, and have the initial custody orders, orders after hearing and all the goodies to substantiate my claims enclosed in the petition.
As a rule I will not help anybody that refuses for no good reason (other than client privilege) that will not submit requested information to me.
I did not disclose in a previous article that I wrote that I am not an attorney, I am a paralegal and work usually in pro-bono but accept donations regarding printer cartridges, telephone bills, fax stuff, reams of paper, the usual trappings that go with this work.
Client privilege to me is the same as if I were an attorney. But I do make motions like this public because it is for the public good but protect the petitioner/respondent.
I hope that this will help those of you presently in litigation or those going in. Please do not make mental stuff an issue unless it really is - you will open a whole can of worms. The citations listed can mostly be gotten at your local law library or at a cost of $15 for 24hrs at
I give free rights to the use of this petition to anyone who needs it. Only rules are that you have to apply it to your situation and your jurisdiction. Schlagenhauf is the precedent. I would shepardize on that in you judicial district. If you have any questions on shepardizing - I will gladly write an article on that!
- Petitioner relies on the landmark case regarding the Federal Rules of Civil Procedure Rule 35 (a). In Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L. Ed 2d 152 (1964) the court delineated the “in controversy” and “good cause” requirements to Rule 35: ... are not met by mere conclusory allegations of the pleadings – nor by mere relevance to the case –but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. 379 U.S. at 118. It has been consistently held that in construing the Florida Superior Court Rule 35 (a), the rulings of the federal courts are persuasive. Alder v. Hudson, Del. Super., 106 a.2d 769 (1954) Canaday v. Superior Ct. Del. Supr., 119 A.2d 347 (1955). Reliance on federal precedent in construing Family court rule 35(a) is also justified by these decisions.
- Allegations of negligent conduct coupled with the claim that there is a controversy as to petitioner’s mental state does not place a party’s mental state “in controversy” nor makes a showing of “good cause.”
- In Miller v. Miller 1997 FL 1217 (Case No. 97-0478 ) a father appealed charging the trial court abused its discretion in first restricting then terminating his unsupervised visitation with his minor son until he submits to court ordered psychological evaluation.
- In determining the issue of whether or not the trial court abused its discretion in ordering the appellant to submit to a psychological examination it looked to Florida Rules of Civil Procedure 1.360(1)(2) which requires that before any party may be ordered to undergo physical or psychological examination, the condition must be “in controversy” and that “good cause” for the examination must be shown. This court has found that to be “in controversy” the condition must directly involve a material element cause of action and that to show “good cause” for the examination, it must be demonstrated that expert medical testimony is necessary to resolve the issue. Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977). Unless the record posits a basis to support these two requirements, the order requiring the examination cannot stand under the Rules and it constitutes a departure from the essential requirements of law. Kristensen v. Kristensen 1981.Fl. 335. See City of winter Park v. Jones, 392 so.2d 568 (Fla 5th DCA 1980); Colonial Penn Insurance Co. v. Blair, 380 so. 2d 1305 (Fla 5th DCA 1980); Smith v. Smith, 118 So.2d 792 (Fla 1st DCA 1960); Paul v. Paul 1979.Fl.156; Gordon v. Davis, 2667 So.2d 874 (Fla.3d DCA 1972).
- The Appeals court reversed stating [w]e could not agree more with the supreme court’s statement that to “...properly balance [the] competing interests is a delicate and difficult task.” Hickman v. Taylor, 329 U.S. 495, 497, 67 s. Ct. 385, 91 L. Ed. 451 (1947). Under the facts and circumstances we feel that no basis has been demonstrated for the petitioner’s right of privacy, Thus, we hold that the discovery sought might cause irreparable harm to the petitioner.
- In Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977), the court held: [i]t goes without saying that petitioner could suffer irreparable injury by virtue of a compulsory psychiatric examination. Discovery of this type is of the most personal and private in nature. The potentially negative effects of petitioner requiring to bare his inner self against his wishes are self-evident.
- In Fred Howland v. Morris, 143 FLA 189, 196 So.472 (1940) the court held that “[at] common law a compulsory examination...was unheard of and would have been denounced as most iniquitous practice.” 196 So. at 473.
- In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 35 L. Ed 734 (1891) the court held:
No right is more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law. 141 U.S. at 252.
- The situation of Dr. Doe is mirrored in Frisard v. Frisard 453 So.2d 1150 where the grueling history of divorce and custody had proven the appellee to be “strong by handling this traumatic rejection, abandonment, deceit and concealment without crumbling and without weakening her resolve to be reunited with her child.” The court had further gone on to say that [t]here was not only evidence of any psychiatric nor psychological problem..., but most important, as we recited earlier, the strength and the ability to function on the appellee’s part during the critical years of separation and uncertainty was uncontradicted. Mental or physical examinations are not automatic, and should not be. First, these are clearly not always warranted..., therefor court appointment is unjustified. Second the cost may be an unnecessary burden on the parties.
- In Re T.M.W., 553 So.2d 260 (Fla 1st DCA 1989) which held that rule 1.360 allows a compulsory examination only on a showing of good cause when mental health or physical condition is in direct controversy. Russenberger, 623 So.2d. at 1245. The district court found that the trial court departed from the essential requirements of law by failing to determine whether the mental condition of the children was in controversy; failing to determine whether good cause was demonstrated requiring the requested psychological examinations; relying on conclusory allegations and argument of counsel instead of sworn testimony or other evidence; and attempting to sidestep the issue presented by the motion improperly abrogating its decisional power to the former husband.
- In Re. T.M.W. (Supra) nearly the identical is true in the Doe Case. On the Order After Hearing there were none of the essential requirements either by FRCP 1.360 or Rule 35(a) and abrogating the decision of such examination arbitrarily to the former wife and counsel. As such Petitioner claims that the proceedings before the judge were clearly insufficient to establish good cause because they consisted of conclusory allegations and argument by counsel.
- In Russenberger (supra) the District court stated [we] urge trial judges to exercise discretion to order psychological examinations with care. Determining custody of children is one of a trial court’s most emotionally charged and difficult decisions. Social investigations, which provide information from objective sources, can be of great help to the court, yet the fact that custody is at issue should not alone create a reason to order a psychological evaluation. A parent’s request for a psychological evaluation may well be an expression of that parent’s vindictiveness.
- It can be argued that the mental health of the parents is always an issue in child custody cases. However when the record provides no evidence other than conclusory allegations that supports the contention that one parent’s mental health may be in controversy, conclusions of a spouse involved in a custody hearing are not sufficient to meet “in controversy” requirement of Rule 35. Dingeman v. Dingeman, 865 P.2d 94
- In summation, the Petitioner asks the court to dissolve its order requiring a Psychological Examination in that it does not meet the two prong test as delineated in Schlagenhauf (supra), and that it should consider that it gave visitation with one minor daughter without the requirement of such examination, yet refused regular visitation on the condition that such examination be completed. Let it be known that visitation predicated upon a psychological examination has been overturned (Miller v. Miller 1997 FL 1217 (Case No. 97-0478)), and such arbitrary orders have been summarily overturned by nearly all jurisdictions.
Petitioner also contends in this emergency Motion, as in the previous one, that it can be implied that judicial discretion was abrogated [of such examination] arbitrarily to the former wife and counsel.
- Petitioner wishes to bring to the Judge’s attention the attached standard custody evaluations which have been deemed by prevailing case law as being the most unintrusive and most objective evaluations in regards to custody.
WHEREFORE Petitioner prays that:
- That the order for a compulsory psychiatric exam be quashed in that it does not conform to Federal Rules of Civil Procedure and does not meet the requirements as delineated in Schlagenhauf (supra)
- regular unimpeded visitation rights be restored;
- that the courts enforce to the fullest extent of the law those visitation rights
Respectfully Submitted
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