A Court in Arizona Lacks Legal Authority to Appoint a Therapist in a Child Custody Case
The Arizona Court of Appeals in the case of Paul E. vs. Courtney F. addressed whether a judge has the authority to order parents to enroll their child in therapy and whether that therapist or other expert was entitled to quasi-judicial immunity from a lawsuit against the therapist if one of the parents chose to sue the therapist. The child’s father, Paul, and the child’s mother, Courtney, were married.
The parties eventually divorced and Courtney was originally given the final legal decision-making authority over educational, medical, and dental decisions affecting their child and the parents were to equally share parenting time.
One day while staying with Courtney, their son “L.” made the decision to wear a skirt to school. Husband directed L. to seek out and speak with a therapist. The therapist suggested Husband and Wife limit L.’s access to female-related items.
Husband then requested the Court modify parenting time and legal decision making regarding the children. Husband claimed that L. was influenced by mother to adopt a female-esque personality/lifestyle. At this point, L.’s therapist had not diagnosed L. with gender dysphoria. Husband also requested, and was awarded, temporary orders limiting mothers parenting time.
The order stated:
- Until further Court order, Mother shall not dress L. in female clothing, shall not purchase female or “girl” clothing for L., shall not to permit L. to dress in female clothing (including, but not limited to underwear, socks, shirts, dresses, skirts, etc.), shall not purchase female-oriented toys or other items for L., shall not refer to L. in his presence or in the presence of any of the other children as “her” or “she,” shall not refer to L. as a “girl” or by other female designation, and shall not encourage any of the parties’ other children to do so, shall not to encourage or direct third parties to refer to L. as “her,” as “she” as a “girl,” or as other female designation, or to treat him as such, and shall not to take any other actions that are inconsistent with the spirit of these orders.
- Until further Court order, Mother shall remove from her home any female or “girl” clothing of or for L. and any female-oriented toys or other items of or for L. Mother may store such items elsewhere for later use in the event the Court later modifies or vacates these orders.
- Until further Court order, Mother also shall direct the parties’ children not to refer to L. as “her,” as “she,” as a “girl” or as other female designation, or if Mother hears or becomes aware of any of those children doing so.
- Until further Court order, Mother shall not refer to L. as “gender variant” or use such term or any related terms in L.’s presence or in the presence of the parties’ other children. Mother further shall refrain from any discussion of gender-related issues with L., with any of the parties’ other children or in L.’s or any of the parties’ other children’s presence.
- Mother shall not provide L. or any of the parties’ other children with any materials addressing gender preference.
- Mother shall not take any actions to frustrate or defy the spirit of any of the foregoing orders.
After further evaluation, L. was diagnosed with gender dysphoria. The temporary orders remained in place, but Husband claimed Wife was not following the orders. L. also engaged in self-harm and was taken to the hospital without any notification to the father.
L. started to identify as a boy again according to L.’s therapist, but Husband claims that Wife amplified her disobedience of the orders once she became aware of this fact.
A custody evaluation was conducted by a court-appointed psychologist to provide the court with guidance on what parenting arrangement would be in the child’s best interests. The court granted this psychologist judicial immunity under ARFLP 95.
The court decided that the temporary orders would remain in effect for 6 months to a year and neither parent could discuss sensitive topics such as hormone manipulation or sex change operations with the child.
The parties could not agree on custody or parenting time, so the court decided it would be best to determine the issue for itself by adopting a “middle ground” approach. The court reasoned that L. had been through an emotional roller coaster and needed a more consistent schedule. The court further concluded that “a therapeutic intervention under ARFLP 95(A) is necessary to guide the parties and the Court through L.’s gender identification process.” It ordered:
- A “gender expert” will be selected to provide feedback and guidance to the Court and the parties regarding gender identification issues. The restrictions set in the Court’s earlier Minute Entry apply. The expert will be appointed by separate Court order.
- L. will continue treatment with the therapist and will work on a “safe haven” basis. She will consult with and work cooperatively with the gender expert. Should the expert have questions regarding this order, she may seek clarification from the Court.
- Although L. will be free to explore in each parent’s house, neither parent shall discuss gender identification issues with L. The parties should apply a standard response if L. asks to talk about gender identification issues, deferring the question or discussion to the therapist. The Court is open to allowing the parents to discuss gender identification issues in the future should such an approach be suggested by the gender expert.
- Neither parent may, directly or indirectly, promote or discourage a specific view of gender identification for L.
On appeal, the Court of Appeals ruled the trial judge had no authority to order the parents to take the child to therapy or appoint a therapist for the child.
The parents, not the court, have such rights to make those decisions for the parents. The court only has the authority to either grant the parent the joint right to make those decisions together or grant one parent sole custody to make those decisions for the child.
Specifically, the Court of Appeals held “courts may do many things in the best interests of children, they cannot advance such interests by exercising jurisdiction that they lack. Every power that the superior court exercises must find its support in the supporting statutory framework.”
Title 25 of the Arizona Revised Statutes states: “[t]he court’s statutorily prescribed role is not to make decisions in place of parents, but to decide which fit parent or parents shall make such decisions.
Joint legal decision-making means both parents share decision-making and neither parent’s rights or responsibilities are superior” and “sole legal decision-making means one parent has the legal right and responsibility to make major decisions for a child.”
A court faced with uncooperative and stubborn parents might reasonably suppose that their children’s best interests would be bettered by an order that effectively resolves a disputed issue.
In an Arizona family law case, the court does not have absolute authority to make decisions for the parents when it believes them to be in a child’s best interests. Instead, the Court must be guided by the best interests of a child in determining legal-decision-making authority.
“Except as otherwise agreed by the parties in writing, 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-makers authority, the child’s physical health would be endangered or the child’s emotional development would be significantly impaired.”
However, the statute requires more than merely a best-interest analysis; it authorizes judicial limitation of a sole decision-makers authority only when “the child’s physical health would be endangered, or the child’s emotional development would be significantly impaired.”
The editors’ comment underlying the statute makes it clear that the heightened standard of endangerment will be satisfied in only the most extreme of circumstances, such as when there is child abuse or neglect, and does not provide a “free pass” for the court to substitute its judgment for that of the custodial parent
When the court ordered that L. see the court-appointed therapist, it acted beyond the court’s authority. The rule does not allow Courts to order and appoint a therapist in cases where parents disagree on whether therapy is appropriate for their child or who that therapist should be to provide treatment.
The appointment of the therapist was to provide treatment for the child. The therapist did not serve any judicial function with regards to the judge’s decision regarding sole legal decision making. Furthermore, restricting the topics the parents can discuss is not related to sole legal custody and therefore infringed upon the parents’ freedom of speech.
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Chris Hildebrand wrote this article about the court’s authority in a child custody case to ensure everyone has access to information about child custody laws in Arizona. Chris is a divorce and child custody attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a divorce.