In 2016, Florida law changed to mandate, in parenting plans designating shared parental responsibility, that either parent retains the right to consent to mental health treatment for their child. Section 61.13(2)(b)3., Florida Statutes, amended by Laws of Florida 2016-241 (enacting Committee Substitute Senate Bill 2016-12, into which legislators included proposed language in House Bill 2016-615 CJS and Senate Bill 2016-794). Analysis of the final version is available here.
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 and disputes. This reserved right to consent challenges parents, courts, and collaborative practitioners to find solutions that work and will forestall later costly modification or enforcement actions.
How did this change in Florida parenting plan law come about? Legislative history provides a rationale for the amended language intended to help parents sharing responsibility for decision making after divorce or separation.
Mental health professionals had identified challenges in providing mental health or counseling to children whose parents were sharing parenting decisions after divorce or separation. The Florida House Civil Justice Subcommittee drew guidance from a University of North Carolina, School of Social Work study. See Sanders, T., Strom-Gottfried, K., & DeVito, D., Theimann Advisory: FAQ on Services to Minors of Divorced Parents, available here.
The 2009 North Carolina study asked mental health providers:
- If a parent brings a minor in for counseling, must the clinician/agency inquire about another parent and that person’s consent for treatment? Does this change if payment/insurance is in the name of another adult?
- Must the clinician/agency secure documentation that verifies custody? How frequently should the clinician/agency request documentation? What documentation is sufficient?
- How is informed consent executed with the other parent?
- What difference does it make if the parents have joint custody or one has sole custody?
- When both parents have legal custody, one parent consents to treatment, but one refuses (for example, based on cost or disputes about the need for or value of counseling), what are the clinician’s/agency’s responsibilities?
- What if the parent presenting the child for service explicitly requests the other parent not be contacted because of a compelling reason (a history of explosive anger, abuse, instability, or paranoia)?
- 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?
- 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?
- When can the clinician/agency treat minors without parental consent?
The Florida House Civil Justice Subcommittee described a tug-of-war between parents using consent to a child’s mental health treatment as leverage in family disputes:
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’s 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.
As parents and collaborative practitioners work through the issue, rather than leave to future judicial or legislative interpretation, parents in initial proceedings may benefit by discussing and being clear in the parenting plan what they mean by “mental health treatment.”