Paul E Decision is Clarified by the Arizona Supreme Court

by Annette Burns on May 13, 2019

The Paul E. Court of Appeals decision which was the subject of previous posts here and here was reviewed by the Arizona Supreme Court. On April 26, 2019, the Supreme Court clarified a few issues.  Some rulings relate only to the specific facts of that case, but the Supreme Court did add a more far-reaching pronouncement of what a trial court can do in a family law case involving joint legal decision-making between the two parents.  This latter finding which I’ll start with is of broader interest to the family law community for future cases which have joint legal decision-making.

First, recall that Nicaise I (the Court of Appeals decision in 2018) made a finding that “the [trial] court’s statutorily prescribed role is not to make decisions in place of parents, but to decide which fit parent or parents should make such decisions.”   This finding was broadly interpreted to mean that if the parents were awarded oint legal decision-making and thereafter can’t agree on decisions about the child, such as where the child should attend school or whether the child should have certain medical treatment, the court’s only option to resolve the dispute would be to assign sole legal decision-making to one parent.

Paul E. II, the Supreme Court decision, has changed that.     “The court is also authorized to intervene when parents cannot agree on childrearing decisions to be included in a parenting plan.  See ARS 25-403.02(C)(2) (permitting a parenting plan to address any issue and requiring a description of “[e]ach parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training”).  When an impasse occurs, the court is authorized to determine not only the parenting plan element in dispute, but also ‘other factors that are necessary to promote and protect the emotional and physical health of the child.’”   The Supreme Court decision then cited to Jordan v. Rea, which authorized the court to make decisions about school choice, based on the best interests standard, if parents with joint legal decision-making cannot agree.

The Supreme Court decision went on to specifically disapprove Nicaise I:   In Nicaise I, the court of appeals stated that 25-403.02(D) did not authorize the family court to make parental decisions when the parties disagreed, as occurred in Jordan, as doing so would ‘render the concept of sole legal decision-making meaningless.’   [citation omitted]  . . . . if the court awards joint legal decision-making authority, the court is authorized to resolve any conflict.  The court is not limited to merely vesting one parent with sole legal decision-making authority on the disputed issue, and we disapprove of the contrary view in Nicaise I.

The Supreme Court’s review of the Nicaise decision in Nicaise II, 2019, had not changed the finding that the trial court can’t make decisions where joint LDM parents disagree, mainly because that issue wasn’t argued or briefed in Nicaise II.   The Supreme Court did establish in Nicaise II that a court’s award of joint legal decision-making with final authority to one parent was NOT the same thing as awarding sole custody, and it reversed the Court of Appeals to that effect.

Moving on to the specific facts of the Paul E. case, the Supreme Court pointed out that there was no joint legal decision-making in that case.  Father had been awarded sole legal decision-making.   The trial court’s direction to Father that he must take the child to certain named therapists was overreaching, once Father had sole LDM.  The trial court’s order did not specify how Father’s exercise of “unchecked legal decision-making”, without court interference, would place the child at risk (per §25-410A).   The complexity of the child’s situation alone was not a basis for invoking that statute, without more information.   And even if findings of specific endangerment to the child were made, the trial court had not offered findings as to how the trial court’s directives for specific therapists were tailored to prevent that harm.  There was no evidence in the record that Father would choose an unqualified or ineffective therapist for the child.  The court did note that the trial court’s findings were implicit that the child would be endangered (or suffer significant emotional impairment) without any therapy at all, so a failure to have the child in any therapy could lead to a court order for the continuation of therapy or for other directives.  That is an issue which was remanded to the trial court for additional findings.

Paul E. II did not change the Court of Appeals’ findings regarding the immunity (or lack thereof) for a court-appointed professional such as a therapist.  That issue was not reviewed by the Supreme Court, and the Court of Appeals ruling on that issue (discussed here) remains in effect.

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