CopyPublished | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 19525, 2014 WL 6674771
...(t) Any other factor that is relevant to the determination of
a specific parenting plan, including the time-sharing
schedule.
§
61.13(3), Fla. Stat. (2012) (emphasis added).
In addition to sections
61.001, and
61.13(2), (3), I also submit section
61.122, Florida Statutes (2012), lends support to the notion that the
legislature intended for courts to have authority to order parents to attend
therapy or counseling when necessary to protect the best interest of
children. Section
61.122 governs the liability of psychologists who develop
a parenting plan recommendation in dissolution of marriage proceeding.
It appears implicit that the legislature envisioned psychologists making
recommendations to the court to assist the court in developing parenting
plans....
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Cited as authorityCancino (2019)phrase: "rule_authority"
CopyCited 1 times | Florida 5th District Court of Appeal
...parenting plan during supplemental proceedings in Comas’s
divorce case.
Saunders and his practice moved for summary judgment,
arguing the common law litigation privilege affords absolute
immunity from the suit. Comas contended, as he does here, that
his claims are permitted by section 61.122(4), Florida Statutes
(2022)....
...ollowed
binding precedent from another district that was clearly contrary
3
To decide whether the trial court departed from the essential
requirements of law, we must consider both the litigation privilege
and section 61.122(4), Florida Statutes, as each applies to the facts
and claims presented in this case.
1.
The litigation privilege finds its origins in English common
law....
...As a result, “the litigation
privilege does not bar the filing of a claim for malicious
prosecution.” Id. at 71.
2.
But considering the litigation privilege does not end our
inquiry. Citing Estape v. Seidman,
269 So. 3d 565, 569 (Fla. 4th
DCA 2019), Comas contends section
61.122(4) abrogates the
privilege in this family law context and authorizes his action
against Saunders and his practice for negligent acts that deviated
from applicable standards. His argument stretches the language
of the statute beyond its breaking point.
Pertinent here, section
61.122(4) provides:
If a legal action, whether it be a civil action, a
criminal action, or an administrative proceeding, is
filed against a court-appointed psychologist in a
dissolution of marriage ....
...associated with the action for both parties if the
psychologist is held not liable. If the psychologist is
held liable in civil court, the psychologist must pay
all reasonable costs and reasonable attorney’s fees
for the claimant.
§ 61.122(4), Fla. Stat. 3
Of course, when interpreting Florida statutes, our “task is to
give effect to the words that the legislature has employed in the
3 Section 61.122(4) was amended in 2025....
...understood the text at the time it was issued.’” D.L. v. Cmty. Based
Care of Brevard, Inc., 51 Fla. L. Weekly D280 (Fla. 5th DCA Feb.
13, 2026) (alteration in original) (quoting Ham v. Portfolio
Recovery Assocs., LLC,
308 So. 3d 942, 947 (Fla. 2020)).
Distilled to its essence, section
61.122(4) is an attorney’s fees
statute. The statute requires that “[i]f a legal action . . . is filed,” a
claimant (such as Comas) is responsible for the attorney’s fees “for
both parties” if the court-appointed psychologist (such as
Saunders) is found not liable. §
61.122(4), Fla....
...See id.
This language presupposes the legal ability of a claimant to bring
a cognizable and then-existing cause of action. The language of the
statute does not create a new cause of action, nor does it authorize
a claim where none otherwise exists.
Comas’s reliance on section 61.122(4) as abrogating the
litigation privilege and authorizing his claims against Saunders
simply requires the language of the statute to carry more than it
can bear....
...they
effect the change with clarity.’” Peoples Gas Sys. v. Posen Constr.,
Inc.,
322 So. 3d 604, 611 (Fla. 2021) (quoting Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
318 (2012)). Accordingly, we will interpret section
61.122(4) to
displace the common law privilege only to the extent “clearly
necessary.” Essex Ins....
...States and the acts of the Legislature of this state.” §
2.01, Fla.
Stat. This wording plainly declares the acts of the Legislature
superior to the common law crafted by the courts.
8
parent, including time-sharing of children.” §
61.122(4), Fla....
...Every action, representation, and recommendation
necessarily arose from and is related to that appointment. Thus,
Saunders and his clinic are afforded absolute immunity from
Comas’s suit by the litigation privilege.
Our conclusion does not render section 61.122(4) without
effect as to civil claims against court-appointed psychologists.
Rather, those actions contemplated by the statute are those that
would otherwise survive the litigation privilege, such as a claim
for malicious prosecution....
CopyPublished | Florida 4th District Court of Appeal
...tatutes (2012), as well as
administrative regulations regarding psychotherapists, show that the
legislature did not intend that absolute immunity apply any time a court
appoints a therapist in dissolution of marriage proceedings. For instance,
under section 61.122, Florida Statutes (2012), regarding the
establishment of a parenting plan, a psychologist who is appointed to
develop a plan, including a time-sharing arrangement, is presumed to be
acting in good faith....
