Picture this scenario: Mother and Father go to trial; one parent has a mental health issue that has affected day-to-day functioning or parenting, and that issue is raised as a reason to award the other parent sole decision-making, or to limit parenting time.
To ensure the parent’s mental health diagnosis doesn’t unduly affect the child, the parent with the issue is ordered to remain in counseling. This is pretty normal and accepted procedure, right? It was done to ensure “the best interests of the child”.
In a similar scenario, one parent has historically had a drug or alcohol abuse problem, but arguably has it under control at the time of trial. That parent has likely been going through some kind of monitoring to prove there’s no problem with it (at least during his or her own parenting time). The parent may be using Soberlink, or may be reporting regularly for urinalysis. In this type of case, the court enters final orders that the parent continue the drug/ alcohol monitoring for a period of six more months. Again, these ongoing orders would seem to serve the child’s best interests.
In Jorgenson (5-6-2021), in an unpublished decision[1], the Court of Appeals reversed a trial court decision which ordered a Mother to continue with her dialectical behavioral therapy (DBT) based on a finding that her failure to participate in regular and consistent mental health therapy was contrary to the child’s best interests.” Despite this finding, the court had ruled that Mother would continue to be the child’s primary residential parent, so long as she participated in the court-ordered “long-term psychotherapy.”
The COA found that the court had no ongoing authority or jurisdiction to order that Mother continue in therapy (much less with a specific provider, which was also part of the court’s order). ARS 25-405 gives the court authority only to appoint professionals to advise the court while an active case is ongoing. As nothing would be pending with the court after final orders were entered, the orders that required continued therapy were invalid.
While this decision (not reported) involved ongoing therapy, it’s easy to imagine the same result for final orders that require a parent to continue with some kind of drug or alcohol testing for a period of time. Or can ongoing substance testing somehow be justified, even if there’s no pending hearing? The court’s authority to order that testing derives from the same statute (ARS 25-405) as the authority to order therapy.
The result of this decision negated not only the orders for ongoing therapy but also the orders awarding Mother primary residential care of the child. So in winning this appeal, Mother may have overthought the issue, as parenting time will be the subject of a new hearing. The rehearing by the trial court will address all parenting time and will determine the child’s best interests based on “circumstances now present”. It’s possible that at retrial, without ongoing therapy, Mother will not again be found to be the best choice for primary residential parent.
[1] Rule 111(c), Arizona Supreme Court Rules https://govt.westlaw.com/azrules/Document/NE2E1D730D63011DFBEA8ABF3F81D86F7?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)