ROBERT BARRY, PETITIONER,
v.
SHAE L. BARRY, RESPONDENT

Fla. 5th DCA | 2015-03-06
No. 5D14-3190
PALMER, LAWSON and COHEN, JJ., concur.
159 So. 3d 306 Florida District Court of Appeal, Fifth District (2015) Positive Treatment
Cited by 14 cases

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Synopsis

Robert Barry seeks certiorari review of a trial court order requiring him to submit to a psychological evaluation in a dissolution proceeding where he is seeking parental responsibility of minor children. The appellate court grants the petition in part, affirming the trial court's authority to order the evaluation but remanding for the court to specify the scope and manner of testing.


Holding

The trial court properly ordered the psychological evaluation because the wife placed petitioner's mental condition into controversy; however, the order was insufficiently specific as to the scope, manner, conditions, and type of testing to be conducted. The trial court must include a specific finding that the mental condition is in controversy and must specify the scope of the examination upon remand.


Headnotes

[1] Competent, substantial evidence supports an injunction for protection against sexual violence when the trial court finds the testimony of a minor child credible and consi…

[2] An order for a psychosexual evaluation is overbroad when it fails to specify the manner, conditions, or scope of the examination.

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Key Quotes

“the failure to specify the manner, conditions, and scope of an examination effectively gives the psychologist "carte blanche" to perform any type of psychological inquiry, testing, and analysis”

Establishes the legal standard that psychological examination orders must specify the scope and manner of testing to prevent unlimited inquiry

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Facts & Procedural History

In a dissolution proceeding, Robert Barry sought parental responsibility of his minor children. His wife alleged that Barry made comments to a minor c…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Robert Barry (“Petitioner”) seeks cer-tiorari review of a trial court order requiring that he submit to a psychological evaluation. We deny the petition in part and grant it in part.

In the underlying dissolution proceeding between Petitioner and his wife, Petitioner is seeking parental responsibility of their minor children. The wife placed Petitioner’s mental condition into controversy by alleging that he made comments to his minor child suggesting that he was contemplating suicide.1 As a result, the trial court entered an order requiring Petitioner to submit to a psychological evaluation.

Although the order does not specifically state that Petitioner’s mental condition is in controversy, or that the wife demonstrated good cause, the court made factual findings that support these conclusions. Therefore, Petitioner has not demonstrated that the trial court departed from the essential requirements of law when it ordered him to submit to a psychological evaluation. Nevertheless, since the date for the evaluation has passed and a new order will need to be entered, we note that upon remand, the court should include a specific finding that Petitioner’s mental condition is in controversy. See Wade v. Wade, 124 So.3d 369, 374-75 (Fla. 3d DCA *3082013) (stating that a court’s failure to address the “in controversy” element in the written order may be sufficient grounds to overturn the order).

Petitioner also challenges the specificity of the order, arguing that the order was inadequate as to “the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” See Fla. R. Civ. P. 1.360(a)(1)(A). The order states, in pertinent part: “Husband therefore shall appear at Psychological Services of St. Augustine, located at 100 S. Ponce De Leon Blvd, St. Augustine, Florida 32804, on the 5th Day of August 2014, to have a psychological evaluation performed by Dr. Jack Merwin regarding the minor children’s safety while in Husband’s care.” We find the order sufficient as to the who, when, and where of the evaluation. Despite Petitioner’s complaint that the order does not set forth the time of the evaluation, that deficiency could be easily remedied by calling the doctor’s office.

Petitioner also argues that the scope of the examination is not clearly defined. We agree. The person requesting the examination has the burden to establish good cause for each particular examination. See Maddox v. Bullard, 141 So.3d 1264, 1266 (Fla. 5th DCA 2014). And if the trial court does not know the particular examinations that the psychologist plans to conduct, it should not grant the request. See id. As this Court recently explained, the failure to specify the manner, conditions, and scope of an examination effectively gives the psychologist “carte blanche” to perform any type of psychological inquiry, testing, and analysis. See id.

Although the order in this case narrows the subject matter of the evaluation to the safety of the children while in Petitioner’s custody, it does not identify the length of the examination, the type of testing, or whether the testing is limited to “methods routine to the profession.” See In re T.M.W., 553 So.2d 260, 261 (Fla. 1st DCA 1989) (“Even assuming we might rely on other evidence in the record to clarify the terms of the order or to infer a limitation to methods routine to the profession, or perhaps a limitation to interview or written testing of the child alone, the record is ambiguous as to those limitations.”)

Accordingly, we grant the petition in part so that the trial court can specify the scope of the testing.

PETITION GRANTED IN PART; DENIED IN PART; REMANDED.

PALMER, LAWSON and COHEN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Oldham v. Hillary E. Greene, 263 So. 3d 807 (Fla. 1st DCA 2018)
  • Bailey v. Bailey, 176 So. 3d 344 (Fla. 4th DCA 2015)
    …also called the “Baker Act,” demonstrated that his mental condition was in controver [*347] sy and good cause was shown to compel his evaluation. The trial court made factual findings which adequately supported those conclusions. See Barry v. Barry, 159 So. 3d 306, 307 (Fla. 5th DCA 2015). Compelling these evaluations is not inconsistent with recognizing that Jonathan may assert the privilege in objecting to production of his existing mental health records. This court observed in Flood v. Stumm, 989 So. 2d 1…
  • Jordan v. Jordan, 187 So. 3d 312 (Fla. 5th DCA 2016)
    …es that Petitioner undergo an examination without specifying what that entails in terms of, for example, “the length of the examination, the type of testing, or whether the testing is limited to ‘methods routine to the profession.’ ” Barry v. Barry, 159 So. 3d 306, 308 (Fla. 5th DCA 2015) (quoting In re T.M.W., 553 So. 2d 260, 261 (Fla. 1st DCA 1989)). As this court explained in Maddox v. Bullard, 141 So. 3d 1264 (Fla. 5th DCA 2014): The trial court’s order does not specify the manner, conditions, or scope o…

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