Arizona Supreme Court

Hays v. Gama


In Hays v. Gama, the Arizona Supreme Court reversed the family court’s decision to exclude evidence pertinent to the best interests of a child as a sanction against a parent who disobeyed a court order.


Perhaps the keystone decision in Arizona child custody law, it essentially held that procedural formalities are subordinate to the best interests of children during litigation involving child custody.

During a contentious divorce, allegations arose that the Father sexually abused the parties’ five-year-old daughter. The trial court appointed a psychologist to perform a custody evaluation who recommended the child visit a therapeutic clinician who could counsel the child and make further recommendations to the family court based on the child’s treatment.

After the parties jointly objected to the custody evaluator’s recommended clinician, Father moved the court to appoint a particular doctor. The doctor was appointed without Mother’s objection initially, though she later moved the court to reconsider its appointment. Mother argued that the child would benefit from a female clinician and the doctor appointed was male. The trial court denied Mother’s motion.

Nevertheless, despite the court order for the child to be treated by the appointed doctor, Mother — who had primary physical custody of the child at this time — took the child to be treated by her preferred counselor.

When Father discovered that Mother was disobeying the court order, he moved the court to sanction Mother. By this time, the child had developed a rapport with Mother’s preferred counselor and the parties agreed that it would be detrimental for the child to change counselors. The court agreed and it ordered Mother to pay for all therapy costs (previously to be split evenly between the parties) and to pay Father’s attorney’s fees and costs incurred to file the motion for sanctions. As an additional sanction, the court ordered that the child’s therapist’s opinions and records were to be excluded from evidence.

Mother unsuccessfully moved the court to reconsider its sanctions before she filed a special action.

In its ruling, the Arizona Supreme Court famously stated that the child’s best interests are “paramount” in child custody determinations. The trial court’s primary responsibility in child custody cases is to safeguard and protect children. In order to do so, it shall consider all relevant factors, as set forth in A.R.S. § 25-403(A).

The Supreme Court distinguished between the types of sanctions the trial court imposed and upheld the monetary sanctions. Because even in child custody cases, the trial court can use its inherent contempt power to sanction a litigant. However, the exclusion of the counselor’s opinions and records from evidence would necessarily preclude relevant, and potentially significant, information and would result in a less-informed custody determination, contrary to the best interests of the child.

Ultimately, the Supreme Court vacated the sanctions that excluded evidence and the case continued in trial court.