Paul E. v. Courtney F.

246 Ariz. 388

439 P.3d 1169

PAUL E., Petitioner/Appellant,

v.COURTNEY F., Respondent/Appellee.

No. CV-18-0111-PR

Supreme Court of Arizona.

Filed April 25, 2019

Paul F. Eckstein (argued), Michael P. Berman, Perkins Coie, LLP, Phoenix; Todd Franks, Robert C. Houser, Franks Law Offices, P.C., Phoenix, Attorneys for Paul E.

Taylor C. Young (argued), Mandel Young PLC, Phoenix; Steven D. Wolfson, Michelle N. Khazai, Dickinson Wright PLLC, Phoenix; Catherine Sakimura, Pro Hac Vice, National Center for Lesbian Rights, San Francisco, CA, Attorneys for Courtney F.

Helen R. Davis, The Cavanagh Law Firm, P.A., Phoenix; Annette T. Burns, The Law Offices of Annette T. Burns, Phoenix, Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers – Arizona Chapter

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined.

JUSTICE TIMMER, opinion of the Court:

¶1 When a family court designates one parent as the sole legal decision-maker for a child, unless the parties agree otherwise, the court may limit the decision-maker’s authority only as necessary to prevent endangering the child’s physical health or significantly impairing the child’s emotional development. See A.R.S. § 25-410(A). We consider whether the family court exceeded its statutory authority by appointing specific treatment professionals for the child here and otherwise limiting the parent’s sole legal decision-making authority. We hold that it did.

BACKGROUND

¶2 Paul E. ("Father") and Courtney F. ("Mother") have three children including L., who was born in 2007. Upon the parties' divorce in 2010, the family court awarded them joint legal decision-making authority with equal parenting time and, as relevant here, gave Father final legal decision-making authority concerning L.’s education and medical and dental care. Mother and Father have clashed on several parenting issues since their divorce, making their relationship, according to the family court, "volatile and dysfunctional." The dispute here stems from the parties' handling of L.’s gender identification.

¶3 According to Mother, L., who is biologically male, displayed an early interest in toys and clothes generally associated with girls. Mother fostered this interest and attempted to socially transition L. to identifying as female without Father’s knowledge or any professional consultation, with sometimes negative consequences. For example, in February 2013, Mother subjected then-five-year-old L. to ridicule by permitting L. to wear a skirt and other articles of "girl" attire to school on "free dress day" and asking the teacher to "encourage his classmates to accept him for who he is." According to Father, this incident was the first time he learned of L.’s interest in wearing skirts and the like. Father immediately sought professional assistance and, with Mother’s agreement, he retained Diana Vigil, a licensed professional counselor, to counsel L. and advise the parties.

¶4 During the months following the "free dress day" incident, Father and Mother parented L. differently concerning gender identification issues. The parties agreed with Vigil that L. would explore wearing clothing and playing with toys typically associated with girls in Mother’s home but nowhere else. They also agreed to only speak with L. about gender issues in a clinical environment. Although Father abided by the agreement, Mother did not. For example, she referred to L. with female pronouns and permitted L. to appear in public wearing clothes generally worn by girls. Mother also spoke with L. about matters beyond L.’s ability to comprehend, such as sex reassignment surgery and hormone therapy. Mother summed up the parties' situation in a September email to Father: "We definitely disagree about how to handle [L.’s] gender variance."

¶5 After Father learned that Mother would not follow Vigil’s advice, he petitioned the family court in December 2013 to grant him sole legal decision-making authority concerning all three children. See A.R.S. § 25-411(A). As relevant here, he asserted that Mother "determined [L.] ha[d] gender dysphoria," despite having no such diagnosis, "insist[ed] the child ... be treated as a girl, rather than as a boy, and ha[d] been ... pushing such behavior on [L.]" At Father’s request, the court immediately ordered Mother to temporarily remove girl-oriented toys from her house and refrain from, among other things, dressing L. in clothing generally worn by girls, referring to L. with feminine pronouns, and discussing gender-related issues with L. and the other children. Although the order applied only to Mother, Father also followed it. The parties and L. refer to these restrictions as "the Rule." The court also ordered diagnostic and custody evaluations and appointed a parenting coordinator.

¶6 Father’s petition remained pending, and the Rule remained in effect, for more than two years as the evaluations occurred. Multiple medical professionals diagnosed L. with gender dysphoria of childhood, which refers to children with "a marked incongruence between the gender they have been assigned to (usually at birth, referred to as natal gender ) and their experienced/expressed gender." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-5 ) 453 (5th ed. 2013). These professionals disagreed, however, on how best to address the diagnosis with L.

¶7 Meanwhile, L. struggled under the Rule. L. repeatedly asked for the return of "girl’s stuff," expressed anger over the Rule, and, under Mother’s influence, blamed Father for its existence. One incident especially illustrates L.’s distress. In February 2015, more than a year after implementation of the Rule, L. reportedly told Mother, "I want to die" and would do so by hanging. L. had purportedly made similar statements about dying to Mother in the preceding days. Mother took L. to the hospital, where L. expressed a desire to die due to the Rule. Fortunately, there were no signs of self-harm, and L. did not relate any incidences of self-harm. Hospital staff initially placed L. on a waiting list for inpatient psychiatric care but, after conducting a second evaluation outside Mother’s presence, they discharged L. to Father. Based on the suicide threats and her concern that the Rule was harming L., Mother unsuccessfully moved the court to vacate the Rule.

¶8 As the trial date drew near, Dr. Paulette Selmi, a psychologist appointed as the custody evaluator, submitted a lengthy and comprehensive report. She concluded that joint legal decision-making would not be possible due to the parents' "high level of conflict" and recommended that one parent be given sole legal decision-making authority. She predicted that Father "[would] make the more rational and responsible decisions."

¶9 Despite the parents' conflicts, Dr. Selmi found L. to be "a delightful, funny, bright, articulate, and charming young person." L. excelled in academics, and teachers reported that L. is very friendly, has "a lot of friends and [is] happy," with no behavior problems. Similarly, Vigil, who had seen L. frequently for more than the preceding two years, described L. to Dr. Selmi as "remarkably resilient, funny, kind, brilliant, outgoing, [and] creative" and reported that L. "gets along well with classmates and is well-adjusted" in school. Dr. Selmi also found that L. has a "positive and close relationship[ ]" with both parents and is well-adjusted to home, school, and the community, although L. has been teased at school regarding gender identity.

¶10 Dr. Selmi made several recommendations regarding L.’s care. She suggested that Vigil continue to provide therapy to L. but refrain from advising the parties on co-parenting matters. Dr. Selmi stated that Vigil’s therapy should be a "safe haven," meaning that what transpires in therapy would not be shared with the parents, absent L.’s agreement, or used in litigation. She also recommended that the court continue the Rule’s "gag order" prohibiting Mother from discussing gender issues with L. and suggested the court consider extending the order to Father so that L. could explore gender identity without parental pressure. Finally, Dr. Selmi recommended that a "physician gender specialist ... follow [L.] along the way."

¶11 The family court conducted a four-day trial in December 2015. The court accepted Father’s agreement that if given sole legal decision-making authority, he would consult with Mother on all major decisions for the children. See A.R.S. § 25-401(6) (" ‘Sole legal decision-making’ means one parent has the legal right and responsibility to make major decisions for a child."). Thereafter, the court designated Father as the sole legal decision-maker for all three children. See A.R.S. §§ 25-403(A), -403.01.

¶12 Pursuant to § 25-410(A) and Arizona Rule of Family Law Procedure ("ARFLP") 95(A) (repealed 2018), and having L.’s "best interests" as its "primary consideration," the court implemented many of Dr. Selmi’s recommendations as mandatory "guidelines," which are at issue here:

• A "gender expert" shall be appointed to provide input to the Court and guidance to the parties regarding gender identification issues.

....

• Diana Vigil will continue as [L.’s] therapist and will operate on a "safe haven" basis. She will consult with and work cooperatively with the gender expert.

....

• [The Rule] is vacated in part. The Rule is lifted as it relates to gender exploration by [L.] in Diana Vigil’s office, Father’s home and Mother’s home. In all other places, it remains in effect. Neither parent shall discuss the lifting of [the Rule] with [L.], or permit gender exploration in their home until Diana Vigil discloses to [L.] that the order has been lifted.

• Although [L.] will be free to explore in each parent’s house, neither parent shall discuss gender identification issues with L. The parties should utilize a standard response as suggested by Dr.

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