In Paul E. v. Courtney F., the Arizona Supreme Court clarified when family courts are statutorily permitted to impose limitations on a parent’s exercise of sole legal decision-making authority.

This case involved a contentious child custody dispute between parents of a child diagnosed with gender dysphoria. The parents often disagreed about important legal and personal care decisions. The trial court awarded sole legal decision-making to Father, but imposed several “guidelines” it deemed necessary to protect the child, including appointment of specific clinicians to help psychologically care for the child. The family court derived its authority to appoint these clinicians from A.R.S. 25-410, which authorizes courts to impose limitations upon sole legal decision-making when the absence of the limitations would endanger the child.

The Court of Appeals vacated the family court limitations and interpreted these limitations strictly as a “directive” it deemed impermissible under the statute. The Supreme Court disagreed with the Court of Appeals and clarified that the limitation can include a directive. However, it upheld the Court of Appeals decision to vacate the family court orders. The Supreme Court held that there was no evidence to suggest that Father’s exercise of sole legal decision-making would endanger the child. Therefore, the Court reasoned, there was no basis for the family court to impose limitations in the first place.

Court of Appeals Decision

The Arizona Court of Appeals’ decision Paul E. v. Courtney F. vacated the family court’s orders that required parents to use a specific treatment provider to provide therapy for their child and to abstain from discussing “sensitive topics” with the child.

When the parties divorced in 2010, the decree awarded joint legal decision-making with Father to retain final say concerning two of the children’s education and medical decisions. Mother was awarded final say authority for the parties’ other child. The parents shared equal parenting time for all three children.

A few years after the divorce, one of the children, L., who was born male, wore a skirt to school during Mother’s parenting time. Mother explained that L. had identified as female, though Father reported no knowledge or observation of this identity. Father arranged for the child to see a therapist and filed several pleadings in family court to restrict Mother’s parenting time.

Per Father’s requests, the family court entered temporary orders to prohibit Mother from “dress[ing]” or “treat[ing]” L. as a “girl.” The parents engaged additional mental health professionals who diagnosed L. with gender dysphoria.

Conflict continued between the parents throughout this case and eventually the matter proceeded to a four-day trial. Father withdrew his request to restrict Mother’s parenting time, so the only issue at trial was legal decision-making. The parents could not agree how to support their child.

The family court awarded sole legal decision-making to Father, though it conditioned sole decision-making upon Father’s good faith consultation with Mother. The family court also provided thorough guidelines it believed were necessary to protect the child’s physical and emotional wellbeing. Specifically, the family court prohibited the parents from discussing gender identification issues with the child. The court’s ruling also appointed specific treatment providers from whom the parents were ordered to obtain continued therapy for L.

Both parents filed post-decree motions. The family court denied father’s request for a new trial and granted, in part, Mother’s request to clarify the treatment provider’s appointment terms. The family court also awarded $22,000 in attorney’s fees to Mother, finding that Father’s post-decree motions were unreasonable.

On appeal, Father argued that the guidelines the family court imposed exceeded its statutory authority. The Court of Appeals agreed and vacated the family court’s appointment of a specific treating professional. The Court of Appeals reasoned that a family court is not authorized to make legal decisions regarding a child’s care. It interpreted the family court’s appointment as a treatment directive rather than a statutorily permissible restriction on sole legal decision-making.

The Court of Appeals also vacated the family court’s prohibition against the parents discussing gender identification with their child. The Court of Appeals interpreted this guideline to restrict parenting time because it restricted the parents’ behavior during parenting time. The Court of Appeals also found this particular restriction infringed on the parents’ constitutional right to free speech.

Because the award of attorney’s fees was based primarily on the family court’s perception that Father’s post-decree positions were unreasonable, this issue was remanded in light of the Court of Appeals’ ruling to determine if financial disparity supported the award.