In a child custody and visitation proceeding, a party may request any other party to submit to an examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. In Asteberg v. Russell, the Florida Court of Appeal recently stated: “Certiorari jurisdiction lies to review an order compelling a mental examination.” J.B. v. M.M., 92 So. 3d 888,889 (Fla. 4th DCA2012); see also Vo v. Bui, 680 So. 2d 601,601 (Fla. 2d DCA 1996). Rule 1.360(a)(l) provides that “[a] party may request any other party to submit to… examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.”
An examination under the rule “is authorized only when the party submitting the request has good cause for the examination.” Fla. R. Civ. P. 1.360(a)(2). “This court has found that to be ‘in controversy,’ the condition must directly involve a material element of the 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.” Williams v. Williams,550 So.2d 166,167 (Fla. 2dDCA 1989) (citing Gasparino v. Murphy, 352 So. 2d 933, 935 (Fla. 2d DCA 1977))…(“Conclusory allegations alone do not put the appellant’s mental health ‘in controversy’ nor demonstrate ‘good cause’ for submission to examination.”); Wade v. Wade, 124 So. 3d 369,375 (Fla. 3d DCA 2013) (“A parent’s mental state is typically at issue in a custody hearing only when there are verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children.”)…Notwithstanding the foregoing, the lower court also departed from the essential requirements of the law in ordering the mental evaluation without notice to the Former Wife that her mental condition was at issue.
To speak with a Jupiter child custody attorney, call Matthew Lane & Associates, P.A. at (561) 651-7273.