The Court’s Authority and Behavioral Health Services: An Evolving Debate

by Annette Burns on March 14, 2019

Continuing on the topic of the court’s authority when it comes to therapy, this post discusses the court’s overall authority to get involved with it:   Can the court order a parent into therapy?  Can a parenting coordinator?  Can the court order a child into therapy over the objections of one or both parents?   Can the court order the whole family into therapy?  What, if any, are the limits?

The court’s authority over other mental health services for the parties remains Rule 95, Arizona Rules of Family Law Procedure, which states in part:

(a) Generally. The court in a family law case may consider the services set forth in this rule, if available. The court must determine on the record whether the parties have the ability to pay for services as well as allocate the costs of those services.

(b) Behavioral or Mental Health Services. Except as provided in Rule 72 or Rule 74, the court may order parties to engage in behavioral or mental health services, including counseling and therapeutic interventions.  

(Writer’s Note:  The exceptions in this subsection caution that a Rule 72 Family Law Master and a Rule 74 Parenting Coordinator cannot order parties to engage in behavioral or mental health services, including counseling and therapeutic interventions.  Those orders must come from the court, and those orders are frequently entered as a condition of awarding legal decision-making or parenting time.  It is also noted that Rule 95’s prohibition on a parenting coordinator sending a party to behavioral or mental health services arguably conflicts with the explicit language of  Rule 74, which states:  

(2) Scope of Authority. A parenting coordinator’s scope of appointment can include:

. . .

(E) recommending that the court order the parents or their child to participate in ancillary services provided by the court or third parties, including but not limited to physical or psychological examinations or assessments, counseling, and alcohol or drug monitoring and testing.

The term “recommending” in Rule 74f(2)(E) does leave the final decision about a parent or child’s counseling to the Court, so a court order must be entered following the parenting coordinator’s report and recommendation on the counseling issue.

The Paul E. v. Courtney F. decision (2018) clouded the waters on the court’s authority regarding therapy. In April 2019, the Supreme Court clarified that issue in Paul E. II and resolved that a trial court may be a tie-breaker and order therapy for a trial (along with other child-related decisions) if the parents with joint legal decision-making cannot agree. But when one parent is awarded sole legal decision-making, the court’s ability to enter specific therapy provisions is greatly curtailed by ARS 25-410A. Paul E. II also clarified that Rule 95 is NOT authority for the trial court to appoint specific therapy providers for a child. “ARFLP 95(A) is a procedural rule and cannot enlarge the court’s authority beyond that granted by statute.”

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