More Changes from the Court

Just a month or so earlier I touched on a fairly monumental case (Nicaise v. Sundarem) from the Arizona Court of Appeals that set a theme of the courts getting out of parents’ hair when it comes to actual parenting.  Now it seems that the same theme continues with Paul E. v. Courtney F. In this article I’ll cover the brief facts of the case, how the Court of Appeals ruled, and what that ruling means to you.

Paul (Father) and Courtney (Mother) have three children in common.  Their son, L., was born three years before they divorced in 2010. Around 2013 when L. would have been around six years old, Mother allowed L. to wear a skirt to school and sent a book “Princess Boy” with him to school for the teacher to read to the class.  Mother indicated that L. would often demonstrate a preference for female items, including wearing female clothing at home. Later, Father started L. in counseling regarding this potential gender disorientation.

In late 2013, Father went back to court and the trial court entered temporary orders prohibiting Mother from dressing L. in girl’s clothing and referring to L. with female labels.  

Over the subsequent years, L. engaged in counseling and therapy with multiple providers. At some point, L. was diagnosed with gender dysphoria.  At the final trial in 2015, both Father and Mother agreed L. should continue in therapy, but disagreed as to the approach to take with future therapy for L.  Father wanted a conservative approach that followed the recommendations of one therapist, and Mother wanted a more active approach that followed the recommendations of another.

The trial court granted Father sole legal decision-making, but then also entered additional orders to help guide the parties through L. gender identification process.  Specifically, the trial court appointed a “gender expert” healthcare provider for L., and appointed a prior therapist to continue treatment. The trial court also put restrictions on the parents as to what they could discuss with L. regarding gender identification, and what types of toys and clothes they could provide L. in their homes.  

Father appealed the trial court’s ruling because its orders specified certain aspects of L.’s treatment even though he was awarded sole legal decision-making.  The trial court’s ruling also infringed on the free speech both parents could have with L. and the other restrictions on their parenting time with L.

The Court of Appeals held that the trial court erred by dictating L.’s therapeutic care.  Similar to the ruling in Nicaise that explained that the court has authority to decide which parent will decide a child’s school, not pick the school itself, the Court of Appeals held that the court only has authority to give one or both parents legal decision-making to make healthcare decisions, not make the decision for the parents.  The Court of Appeals referred back to the Constitution and the fundamental right of parents (not the courts) to make decisions regarding the care of their children.

The Court of Appeals did note a narrow exception in Arizona law (a statute, 25-410) that would allow the court to infringe somewhat on a parent that has sole legal decision-making and put limitations on that parent. In short, that exception is only when the child would be endangered or the child’s emotional development would be significantly impaired without some type of limitation on the parent that has sole legal decision-making.  With this exception in mind, the Court of Appeals didn’t really think it applied because L. wasn’t in danger. Even if it applied, the Court of Appeals pointed out that the statute says the Court can put in place “limitations”, not select a specific healthcare provider for a child in lieu of a parent’s decision.

The Court of Appeals also held that the trial court erred by restricting the parents’ exercise of their parenting time with L., specifically by restricting their interactions with L. including not talking about gender identification and what kinds of toys or clothing they could have in their home for L.  The Court of Appeals pointed out that the court only has authority to restrict a parent’s time if it would seriously endanger the child. The Court of Appeals didn’t believe that bar was met, and even it if was, the restrictions put in place were too stringent as they significantly restrained the parents’ and L.’s free speech.  

Based on the Court of Appeals holdings, all of the court orders appointing specific healthcare providers for L. were vacated, and the orders restricting the parents’ speech and parenting of L. were also vacated.  

What Does this All Mean?

Here’s my take on the holdings from Paul E. v. Courtney F. and what this case means to you.  This case continues the tone or theme of the courts butting out of parents parenting their children.  As I expressed in my article on Nicaise, I think the result of Paul E. is going to be more parents getting sole legal decision-making.  The court cannot substitute its opinions in place of the parents when it comes to legal decisions, such as picking the child’s school, or how to treat particular healthcare issues.  The court can only give the authority to make those decisions to one or both parents. So, in the case where the parents cannot agree, the court will no longer be the tie breaker and pick one parent’s plan.  Instead, the court will break the tie by giving one parent all of the power (at least with regard to that type of issue, be it medical or education, etc.). As I expressed previously on this subject, I think this means parents should be on the alert and try very hard to co-parent with the other parent in good faith and as reasonably as possible.  Otherwise, if a disagreement arises and the court has to make a decision to give one parent all the power, you probably won’t get it.

I think the trial judge in this case was trying to help and trying to do the right thing for the child.  However, at the end of the day, the court overstepped its bounds and the Court of Appeals is continuing to establish the precedent of parents, not the court, parenting their children.  

If you are going through a divorce, keep this case in mind as the court can’t force you and/or the other parent to select a particular healthcare provider for your children, nor severely restrict your parenting time with your children by limiting your speech with your children.  That being said, you should be aware that under Rule 95, Arizona Rules of Family Law Procedure, the court can order the parents and/or children to submit to certain things like parenting classes, a “custody” evaluation, or mental health evaluation while a divorce (or “custody”) case is pending.  However, this rule and the treatment that can be ordered under it are to help the court render a decision, NOT for ongoing professional treatment after the case is over.

Listen to the podcast series on legal custody to learn more.