Court’s Authority to Direct a Parent’s Decision-Making is Limited: Paul E. V. Courtney F.

Court’s Authority to Direct a Parent’s Decision-Making is Limited: Paul E. V. Courtney F.

Paul E. v. Courtney F., was decided by the Arizona Court of Appeals, Div. I, on April 3, 2018.

This important Division 1 Court of Appeals case defines provisions of legal decision-making, both joint and sole, and severely restricts the trial court’s ability to make decisions for a child’s best interests.

The three primary takeaway points from Paul E are:

  1. A trial court cannot direct a parent with sole legal decision-making how to exercise that decision-making.  (Legal decision-making is referred to as “LDM” throughout this post.)
  2. A trial court cannot direct parents to abstain from the discussion of certain topics with or around the child, even upon a finding that such a restriction is in the child’s best interests.
  3. Therapists who provide therapy for an individual (child or parent) are not entitled to, and cannot be granted, judicial immunity as they are not performing a service for the court.[1]

Holdings #1 and 2 are addressed in this post, with a separate post to following on the third holding.

First Holding:   The trial court can’t tell a parent how to exercise LDM.

This case, which involved a child who may or may not have preferred to wear clothing of the opposite gender, actually has very little to do with gender dysphoria.   It has to do with the authority of the court system—actually, the lack of such authority— to direct a parent to raise a child under certain parameters.    Whether or not the child in this case had gender dysphoria — and that was a diagnosis for the child from more than one professional —- the child unquestionably had some emotional difficulties which called for therapy.   The parents agreed on the child’s need for therapy and asked the court’s assistance in appointing a “gender expert” or “gender therapist” who would work with the family directly as a treating professional and who would not report to the court.  (While this case specifically required a “gender therapist,” the role described is very similar to a therapeutic interventionist who could be appointed in a case not involving gender dysphoria.)

While Father was awarded sole LDM for medical issues, the trial court also ordered the continuation of the child’s therapy with a specific therapist, and ordered both parents to refrain from talking about specific topics (mostly gender identification) with the child.    Citing ARS §25-410A, the court found that the parents’ reaction to the gender dysphoria diagnosis had already caused the child emotional harm and the dynamics of the parents’ relationship caused a continued potential for harm.

Arizona’s statute, ARS §25-410A, states in part:

“ . . . the parent designated as sole legal decision-maker may determine the child’s upbringing, including the child’s education, care, health care and religious training, unless, on motion by the other parent, the court, after a hearing, finds that in the absence of a specific limitation of the  parent designated as the sole legal decision-maker’s authority, the child’s physical health would be endangered or the child’s emotional development would be significantly impaired.”  Emphasis added.

Frankly, I can’t figure out how the COA got around the very specific findings of the trial court which invoked §25-410A under these facts.   The COA seems to have completely substituted its own discretion for the trial judge’s.  The trial court specifically found that the child’s physical and emotional health could be impaired without specific limitations on Father’s exercise of sole LDM (i.e. the continuation of the child’s therapy with a specific therapist).  It seems to me that this case fell squarely within the 410A parameters, as the case involves a child’s access to medical care/ therapy.

And, the example cited by the COA, taken from the comments to the Uniform Act that led to 25-410A, seems tailored to this case’s facts:

  • extraordinary circumstances (the child’s gender dysphoria and the parents’ conflict about it)
  • endangers the child’s physical health or significantly impairs his emotional development
  • a standard more onerous that the best interests test (and)
  • grave behavioral or social problems such as refusal . . . to provide medical care for a sick child.

[¶27 of opinion, citing the Comment to Uniform Marriage & Divorce Act §408]

The COA’s attempt to argue that these quite extraordinary facts do NOT fall within the parameters of 25-410A seems tortuous.

The opinion goes on to state that even if 25-410A did apply, it does not authorize the court to name a specific therapist.  This could be a better-reasoned argument, although why couldn’t the court’s ability to apply a “specific limitation” to the exercise of LDM include naming a “specific” therapist?

Rule 95, Arizona Rules of Family Law Procedure, was briefly discussed in this ruling, in the context of a possible basis for the court’s selection of a specific therapist for the child (as discussed in the previous post).    The Court of Appeals correctly noted that a Rule cannot confer substantive authority on the court, and rules are procedural mechanisms to aid in the court’s exercise of its statutory authority.    Because the Court of Appeals found that the trial court had no statutory authority to name the child’s therapist, Rule 95 did not apply.

Second Holding:  The best interests of the child are trumped by the parents’ constitutional rights of free speech.

The decision states that the trial court can’t order parents not to talk about certain things in front of the child, as that is an impermissible restriction of parenting time.   Thus, this court’s orders not to talk to the child about gender dysphoria (outside of therapeutic conditions) were vacated, as each parent has the right to exercise parenting time as he and she sees fit.  Similarly, orders that a parent not speak ill of or disparage the other parent would interfere with a parent’s parenting time, and orders not to discuss the court’s rulings with the child are impermissible restrictions on parenting time.    The Court’s ability to “restrict” parenting time under ARS §25-411J is limited to placing conditions such as supervision or geographical restrictions; it cannot extend to limitations on the parent’s free speech.

The third holding relating to judicial immunity for therapists appointed by the court will be the subject of the next post.

[1] This decision also involved an attorneys’ fees award based on unreasonableness which was overturned by the COA.  The attorneys’ fees issue is not discussed in this post.

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