Gish v. Grayson Adds Clarity to Court Appointments to Enforce Parenting Time Orders

Gish v. Grayson Adds Clarity to Court Appointments to Enforce Parenting Time Orders

Gish v. Grayson  (June 28, 2022, Arizona Court of Appeals, Division 1) clarifies how family court judges can make enforceable and clear orders for the use of a TI (Therapeutic Interventionist) or COBI (Court-Appointed Behavioral Interventionist) that do not unlawfully delegate the court’s decision-making authority to third parties.  COBIs are to be discussed at length in the next post coming up in a few days.

The Gish fact situation was a familiar one:  a child was not exercising parenting time with one parent, and a COBI was appointed to assist with the reunification process and to help ensure that each parent was getting parenting time. The underlying petition pending with the court was one for enforcement of existing parenting time orders.

While the Gish case originally (2017) involved orders for equal parenting time, it appears that equal time was never or rarely exercised. By 2021, the court’s latest parenting time orders did not reference any specific parenting time for Father. The 2021 orders punted the issue to a court-appointed professional. This was a crucial defect in the orders.

Those 2021 parenting time orders were a delegation of judicial authority to a third party that should not have happened.   Under these specific facts, the court had turned over its authority to the COBI, which could not be sustained on appeal.[1]

This case does not invalidate the use of COBIs (or TIs) generally – quite the opposite.  The Gish case is valuable in instructing attorneys, judges, and mental health professionals who will end up being appointed as TIs (or COBIs) in the future, about how to craft valid, enforceable, and appropriate orders for parenting time and for the appointment of experts to assist with the orders.   

What does Gish tell us must be included in valid court orders before appointing a  TI or COBI?   It’s easier to state this in terms of what the appointment and parenting time orders CANNOT say.  Those orders cannot include statements like:

*Father’s parenting time is at the discretion of the TI;

*Father’s parenting time will continue to increase upon recommendation of the TI;

*Father’s parenting time will be supervised as directed by the TI until (s)he determines that the child is ready for unsupervised contact;

*The parties shall follow the TI’s recommendations for parenting time with the goal of gradually increasing Father’s parenting time; OR

*Father’s parenting time remains supervised until the TI determines that Father has completed [parenting classes/ substance abuse classes/ a period of testing, etc.].

Taking these instructions into account, it appears that valid TI appointment orders can be entered after valid parenting orders are entered, and those parenting time orders must include:

*A specific schedule for each party’s parenting time which will be followed until new court orders are entered;

*Specific orders about whether any party’s parenting time will be supervised;

*Specific orders about what a parent with supervised parenting time must do in order for the supervision to be lifted;

*Directions about how the TI will report to the court and make recommendations for any changes to the schedule, with specific requirements for periodic reports from the TI;

*And, most importantly, a statement that no changes to the current schedule and orders will be made until the court has conducted an evidentiary hearing.

 As noted in the Gish footnote #2, changes to the parenting time that are “self-effectuating” (meaning they happen upon a given event and not after a hearing) can be stated in an order only if the change occurs at a time which could not be in dispute, i.e. a child’s age/ birthday; or a child beginning school.  But any change which is subject to dispute, such as whether a child is ready for a particular schedule, or whether a parent is complying with substance testing, requires an evidentiary hearing.   It appears that a court-appointed TI can still recommend a change to a schedule (such as moving from supervised to unsupervised access), but importantly, that change cannot take effect until the court has held an evidentiary hearing on that change and each party has had the opportunity to present evidence.

Gish is notable for two other holdings:  First, the court may enter a parenting time order which awards all or substantially all of the parenting to one parent, while simultaneously awarding sole legal decision-making to the other parent.   Yes, the parent with limited or no parenting time can be made the sole legal decision-maker.    In this fact situation, that order was entered after findings that Mother (the person with most of the parenting time) had previously been given final say in decision-making, and she had “misused that authority”. The court felt she would continue to do so if decision-making was left with her.   That award of sole LDM to Father was upheld.  

Second, courts cannot ignore the requirement that when appointing an outside expert, which it has the ability to do under Rule 95(b), Arizona Rules of Family Law Procedure, the court must make specific findings that the parties in this case can afford the process.   Rule 95(a) provides that the court can consider these services (which include behavioral and mental health services) and “must determine on the record whether the parties have the ability to pay for services.”   This was another downfall in Gish, because there were no findings on the record about the parties’ ability to pay for the TI. 


[1] I say “Under these specific facts”, but there are probably dozens, if not hundreds, of similar orders currently in place which state that a TI runs the show and decides when parenting time (or specific provisions about parenting time, like supervision or substance testing) will happen.  The best I can offer, if one has one of those orders, is the recommendation to file for a modification of parenting time orders. This is necessary to get specific court direction on what the TI should be doing and to make it clear that the court, not the TI, is setting the parenting time.

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