Paul E. v. Courtney F. , 246 Ariz. 388 ( 2019 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
PAUL E.,
Petitioner/Appellant,
v.
COURTNEY F.,
Respondent/Appellee.
No. CV-18-0111-PR
Filed April 25, 2019
Appeal from the Superior Court in Maricopa County
The Honorable Joseph C. Kreamer, Judge
The Honorable Danielle Viola, Judge
No. FC2010-051045
VACATED IN PART AND REMANDED
Opinion of the Court of Appeals, Division One
244 Ariz. 46 (App. 2018)
VACATED IN PART
COUNSEL:
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
Paul E. v. Courtney F.
Opinion of the Court
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.
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¶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
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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
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Opinion of the Court
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. Selmi if [L.] asks to talk about gender
identification issues, deferring the question or discussion to
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Diana Vigil. No person other than the gender expert (and his
or her designee) and Diana Vigil shall discuss gender
identification/exploration with [L.] 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.]
After seeking input from the parties about who should serve as the gender
expert, the court appointed Dr. Diane Ehrensaft to serve in that role.
¶13 Following post-trial motions, the court clarified that Vigil
would serve as a court-appointed expert to provide therapy for L. and to
advise the court pursuant to A.R.S. § 25-405(B). It further ordered that no
other clinician could evaluate or treat L. without Vigil’s permission or court
order. It also ruled that neither party could have access to Vigil’s records
and that Vigil could “determine when and if to share or discuss an issue
with the parents.” The court authorized Vigil to confer with L.’s teachers
and child care providers and examine L.’s school and medical records. The
court stated that its order “act[ed] as a release by the parents” of all
privileged information concerning L. and directed them to provide any
releases requested by Vigil to obtain information. Finally, it stated that both
Vigil and Dr. Ehrensaft would be “cloaked with applicable judicial
immunity.”
¶14 The court of appeals vacated the family court’s orders to the
extent they infringed on Father’s exercise of his sole legal decision-making
authority concerning L. Paul E. v. Courtney F., 244 Ariz. 46, 48 ¶ 1 (App.
2018). Specifically, the court held that the family court lacked authority to
choose L.’s therapists, to order the parties to refrain from making certain
parenting choices (including discussing sensitive topics with L.), or to
confer judicial immunity on the appointed therapists. Id. The court also
vacated an attorney fee award against Father and remanded for a re-
determination of Mother’s fee request. Id.
¶15 We granted review to decide whether the family court was
authorized to appoint a specific treating therapist for L. (Vigil) and a
consulting expert for the court and parties (Dr. Ehrensaft), with attendant
restraints on Father’s authority, all issues of statewide importance. We
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Paul E. v. Courtney F.
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have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.
DISCUSSION
I. A.R.S. § 25-410(A)
¶16 Once appointed as sole legal decision-maker for L., Father
alone possessed the “legal right and responsibility to make major
decisions” for L., including non-emergency health care and personal care
decisions. § 25-401(3), (6); Nicaise v. Sundaram (Nicaise II), 245 Ariz. 566, 569
¶ 14 (2019) (“[A]n award of sole legal decision-making . . . creates unshared
authority.”). Section 25-410(A) authorized the family court to limit Father’s
authority in narrow circumstances:
Except as otherwise agreed by the parties in writing at the
time of the legal decision-making or parenting time order or
divorce decree, 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-maker’s
authority, the child’s physical health would be endangered or
the child’s emotional development would be significantly
impaired.
The issue here is whether the court’s appointments of Vigil and Dr.
Ehrensaft, including the broad authority granted to them, are permissible
“specific limitation[s]” on Father’s authority.
¶17 Before addressing the merits, we quickly dispense with
Father’s argument that the family court lacked authority to limit his
authority under § 25-410(A) because Mother had not filed a motion seeking
a limitation. Father did not object to the lack of a motion before the family
court or the court of appeals, although the latter court addressed it. See Paul
E., 244 Ariz. at 56 ¶ 30 (“[T]he procedural prerequisites for § 25-410(A) were
not present: the court was faced with a petition to modify legal decision-
making, not a motion to limit sole legal decision-making.”). The family
court’s error in proceeding absent a motion or the parties’ agreement was
not preserved and is not before us. See N. Valley Emergency Specialists, L.L.C.
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Opinion of the Court
v. Santana, 208 Ariz. 301, 302 ¶ 6 n.2 (2004) (finding issue not raised by party
in either the trial court or court of appeals waived).
¶18 On the merits, resolution of the issue here turns on the
meaning of § 25-410(A). We interpret the provision de novo with the aim
of effectuating the legislature’s intent. Ryan v. Napier, 245 Ariz. 54, 64 ¶ 41
(2018). If § 25-410(A) has only one reasonable meaning, we will apply that
meaning without further analysis. Id. “If the statute is subject to more than
one reasonable interpretation, however, we will resolve that ambiguity by
examining other factors like the context of the statute, the language used,
the subject matter, its historical background, its effects and consequences,
and its spirit and purpose.” Id. (internal quotation marks omitted).
¶19 The court of appeals concluded that a “specific limitation”
under § 25-410(A) allows a family court to prohibit the sole legal decision-
maker from making decisions like withholding therapeutic care for a child
but does not authorize the court to issue “directive[s]” like requiring care
by a specific provider. See Paul E., 244 Ariz. at 55 ¶ 28. Father adds that
giving “specific limitation” the broad meaning ascribed to it by the family
court would effectively eliminate his statutory rights as sole legal decision-
maker and infringe on his fundamental right to parent L. Mother counters
that the plain meanings of “limitation” and “authority” permit the court to
direct a child’s care in any manner necessary to protect the child’s physical
and emotional health. She also argues that a sole legal decision-maker’s
fundamental right to parent is not violated because the limitation can only
be imposed to protect a child from harm, which is a compelling state
interest.
¶20 The term “specific limitation” is not statutorily defined.
Reading the term in its proper context within § 25-410(A) indicates it creates
a narrow exception to the broad authority conferred on the sole legal
decision-maker. See BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17,
21 ¶ 19 (2018) (“We must not interpret terms in isolation, but rather in their
overall context.”). The statute requires more than just a showing that a
limitation on the sole legal decision-maker’s authority would be in the
child’s best interests. Cf. § 25-403(A) (requiring the family court to consider
best interests in deciding whether to award joint legal decision-making
authority or sole legal decision-making authority). Rather, the court may
limit the sole legal decision-maker’s authority only if “the child’s physical
health would be endangered or the child’s emotional development would
be significantly impaired,” circumstances that presumably would occur
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infrequently with a fit parent making decisions. § 25-410(A). Also, any
finding of endangerment or significant emotional impairment must spring
from “the absence of a specific limitation.” Id. It follows that a permissible
“specific limitation” must have a nexus with the required finding. And use
of the term “specific” suggests that any ordered limitation must avert
endangerment or impairment without unnecessarily infringing on the sole
legal decision-maker’s authority, which is broad and unshared. See Nicaise
II, 245 Ariz. at 569 ¶ 14.
¶21 Section 408 of the Uniform Marriage and Divorce Act
(“UMDA”), which the Arizona legislature adopted as § 25-410(A), also
supports a conclusion that the family court’s ability to infringe on a sole
legal decision-maker’s authority is restrained. See UNUM Life Ins. Co. of Am.
v. Craig, 200 Ariz. 327, 332 ¶ 25 (2001) (“[W]e assume that the legislature
intended to adopt the construction placed on the [Uniform] act by its
drafters.” (internal quotation marks omitted)). The comment to § 408 states
that this provision is designed to “promote family privacy and to prevent
intrusions upon the prerogatives of the [sole legal decision-maker]” at the
other parent’s request. See UMDA § 408 cmt.; see also Craig, 200 Ariz. at 332
¶ 25 (“Commentary to such a uniform act is highly persuasive unless
erroneous or contrary to the settled policy of Arizona.”). It recognizes that
the parent with sole legal decision-making authority is generally
“responsible for post-divorce decisions concerning the upbringing of the
child” and cautions against court intervention unless it is to enforce a
written agreement between the parents or to prevent endangering the child:
[I]n the absence of parental agreement, the court should not
intervene solely because a choice made by the [sole legal
decision-maker] is thought by the [other] parent (or by the
judge) to be contrary to the child’s best interest. To justify
such an intervention, the judge must find that the [sole legal
decision-maker’s] decision would “endanger the child’s
physical health or significantly impair his emotional
development”―a standard patently more onerous than the
“best interest” test. The standard would leave to the [sole
legal decision-maker] such decisions as whether the child
should go to private or public school, whether the child
should have music lessons, what church the child should
attend. The court could intervene in the decision of grave
behavioral or social problems such as refusal by a custodian
to provide medical care for a sick child.
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UMDA § 408 cmt.
¶22 Interpreting § 25-410(A) as authorizing the court to impose a
specific limitation on a sole legal decision-maker’s authority that does no
more than prevent either endangering the child’s physical health or
significantly impairing the child’s emotional development also
accommodates “the fundamental right of parents to make decisions
concerning the care, custody, and control of their children” under the
Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality
opinion); see also A.R.S. § 1-601 (recognizing that “[t]he liberty of parents to
direct the upbringing, education, health care and mental health of their
children is a fundamental right” that “shall not [be] infringe[d] on” absent
a compelling governmental interest “of the highest order” and only when
such infringement “is narrowly tailored and is not otherwise served by a
less restrictive means”).
¶23 Although we agree with the court of appeals that § 25-410(A)
has narrow application, we disagree with aspects of the court’s
interpretation. First, a “specific limitation” does not have to be a
“prohibit[ion]” rather than a “directive.” Paul E., 244 Ariz. at 55 ¶ 28. A
“limitation” is a “restriction or restraint.” Black’s Law Dictionary 1069
(10th ed. 2014) (defining “limit” as a “restriction or restraint” and
“limitation” as “[t]he act of limiting”); see also DBT Yuma, L.L.C. v. Yuma Cty.
Airport Auth., 238 Ariz. 394, 396 ¶ 9 (2015) (“Absent statutory definitions,
courts generally give words their ordinary meaning and may look to
dictionary definitions.” (internal citation omitted)). Just as a prohibition
restricts and restrains a sole legal decision-maker’s authority, so does a
directive. The key to complying with § 25-410(A) is that the limitation, in
either form, must be necessary to prevent the child’s physical
endangerment or significant emotional impairment.
¶24 The court of appeals apparently was persuaded that a
“directive” is impermissible because the family court “has no say in the
actual decisions of the chosen parent” and “typically [may] do no more than
reallocate the authority between the parents” when they disagree. Paul E.,
244 Ariz. at 54 ¶ 26; see also id. ¶ 25 (“[T]he [family] 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.” (quoting Nicaise v.
Sundaram (Nicaise I), 244 Ariz. 272, 280 ¶ 27 (App. 2018), vacated in part on
other grounds, Nicaise II, 245 Ariz. 566)). This is not so.
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¶25 The family court is authorized to make childrearing decisions
in limited, statutorily prescribed circumstances. For example, the court
may grant third-party-visitation rights over a parent’s objection if
“visitation is in the child’s best interests.” A.R.S. § 25-409(C); In re Marriage
of Friedman & Roels, 244 Ariz. 111, 113 ¶ 1 (2018) (holding that “when two
legal parents disagree about whether visitation is in their child’s best
interests, both parents’ opinions are entitled to special weight” but
“parents’ conflicting opinions must give way to the court’s finding on
whether visitation is in the child’s best interests”).
¶26 The court is also authorized to intervene when parents cannot
agree on childrearing decisions to be included in a parenting plan. See
A.R.S. § 25-403.02(C)(2) (permitting a parenting plan to address any issue
and requiring a description of “[e]ach parent’s rights and responsibilities
for the personal care of the child and for decisions in areas such as
education, health care and religious training”). When an impasse occurs,
the court is authorized to determine not only the parenting plan element in
dispute, but also “other factors that are necessary to promote and protect
the emotional and physical health of the child.” § 25-403.02(D); see also
Jordan v. Rea, 221 Ariz. 581, 589 ¶¶ 19–20 (App. 2009) (concluding that
former, identical version of § 25-403.02(D) authorized the family court to
apply best-interests standard to resolve parents’ disagreement about which
school children should attend).
¶27 In Nicaise I, the court of appeals stated that § 25-403.02(D) did
not authorize the family court to make parental decisions when the parties
disagreed, as occurred in Jordan, as doing so would “render the concept of
sole legal decision-making meaningless.” Nicaise I, 244 Ariz. at 281 ¶ 29 n.6.
But that statute applies when both parents are entitled to make certain
decisions and thus need to agree, which is not typically the situation when
one parent is the sole legal decision-maker. See § 25-403.02(D) (authorizing
court intervention “[i]f the parents are unable to agree”). Thus, if the court
awards joint legal decision-making authority, the court is authorized to
resolve any conflict. The court is not limited to merely vesting one parent
with sole legal decision-making authority on the disputed issue, and we
disapprove of the contrary view in Nicaise I. See Nicaise I, 244 Ariz.
at 280–81 ¶¶ 27–30. In contrast, when, as here, the family court has
awarded sole legal decision-making authority to a parent, if the other
parent disagrees with the sole legal decision-maker on a major issue, the
court may only intervene as authorized in § 25-410(A).
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¶28 We also disagree with the court of appeals that endangerment
and significant emotional impairment, as used in § 25-410(A), means abuse
or neglect, which implies wrongdoing. See Paul E., 244 Ariz. at 55 ¶ 27
(stating § 25-410(A) applies only when a specific limitation is “necessary to
prevent abuse or neglect” (internal quotation marks omitted)). Although
the legislature defined “abuse” and “neglect” for statutes addressing child
safety, see A.R.S. § 8-201(2), (25), which are inapplicable here, nothing in
§ 25-410(A) suggests any intent to import these terms. Also, the case relied
on by the court of appeals did not address § 25-410(A). See Egan v. Fridlund-
Horne, 221 Ariz. 229, 234 ¶ 16 (App. 2009) (“States may regulate the well-
being of children and thus restrict the control of parents in a number of
areas, including . . . prevention of abuse or neglect.”).
¶29 In sum, § 25-410(A) authorizes the family court to impose a
specific limitation on the sole legal decision-maker’s authority only when
the other parent demonstrates that absent that limitation, the child would
be physically endangered or the child’s emotional development would be
significantly impaired. This provision will be triggered most often after the
sole legal decision-maker has either actually exercised authority or has
indicated he or she would do so in a way that would harm the child. For
example, refusing to retain particular therapeutic services could justify an
order requiring such services if refraining from doing so would endanger
the child’s physical health or significantly impair the child’s emotional
development. The limitation imposed can be a prohibition or a directive.
But any limitation must be tailored to prevent or remedy the endangerment
or impairment. The court must be mindful not to unnecessarily intrude on
the sole legal decision-maker’s unshared authority to make major decisions
concerning the child’s upbringing, even if those decisions conflict with
expert opinion or the court’s own views on childrearing.
¶30 As for the orders here, the family court found that “Father’s
approach [to gender dysphoria issues] [w]as generally reasonable” and he
“appropriately sought out therapy for [L.] and followed the therapist’s
advice” before issuance of the Rule. But Father’s failure to “actively
encourage gender exploration in his home” before the Rule, maintenance
of a log documenting events bearing on L.’s gender identification, and
“view that [L.] might be ‘in remission’ during 2015” indicated “he may not
be as open to allow exploration as the experts . . . believe is appropriate.”
Addressing § 25-410(A), the court found that “[L.’s] gender dysphoria
diagnosis and the parents’ response to it has already caused [L.] emotional
harm” and “[w]hile Father may argue that Mother[]” mainly inflicted that
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harm, “Father was slow to accept the diagnosis, and has advocated a
position that [L.] was in ‘remission’—a position at odds with the experts.”
Thus, given the “complexity of [L.’s] situation, the dynamics of the parties’
relationship and the potential for harm if it is not managed correctly,” the
court found that L.’s “physical health would be endangered and emotional
development impaired” if the court did not “establish some [mandatory]
guidelines for the parents in addressing [L.’s] situation.”
¶31 This order does not satisfy § 25-410(A) because it fails to focus
on how Father’s exercise of unchecked legal decision-making authority
would place L. at risk for physical injury or significantly impair L.’s
emotional development. The complexity of L.’s situation is not a basis alone
for invoking § 25-410(A). Fit parents, like Father, frequently guide their
children through complex situations without court interference. The
“dynamics of the parties’ relationship” does not suggest that Father will
exercise his sole legal decision-making authority in a way that endangers
or impairs L. And the potential for harm due to mismanaging the gender
dysphoria diagnosis is not equivalent to finding that absent a specific
limitation, L. would be put at risk for harm or suffer harm. See § 25-410(A).
¶32 Mother has not pointed to any evidence, and we have not
found any, supporting a finding that absent the mandatory “guidelines”
imposed by the court, Father’s exercise of decision-making authority would
physically endanger L. or significantly impair L.’s emotional development.
Father’s past reluctance to accept L.’s diagnosis does not demonstrate he
would fail to appropriately address that diagnosis in the future. Indeed, he
has meaningfully addressed the diagnosis, and the evidence suggests he
will continue to do so. For example, Father originally retained Vigil’s
services, maintained them throughout the court proceedings, followed her
advice, and said he would both continue to pursue therapy for L. with Vigil
or a future therapist and retain a gender expert. Before the court, Father
expressed a willingness to allow L. to fully explore gender issues in his
home and agreed with Dr. Selmi’s recommendation that Father see a
therapist to acquire “psycho-educational approaches to learning about
gender issues.”
¶33 None of the expert evidence supports a finding that Father’s
exercise of sole legal decision-making authority, absent the mandatory
“guidelines” here, would harm L. According to Vigil, although Father was
initially uncomfortable with L.’s gender dysphoria diagnosis, he came to be
“more accepting” of it. Dr. Selmi reported she “never viewed Father as an
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Paul E. v. Courtney F.
Opinion of the Court
individual who will reject [L.] if [L.] decides to be a transfemale, gay, or
straight, or something else.” Although Dr. Selmi recommended many of
the directives that comprised the court’s appointment orders, she did not
state that the failure to implement them would endanger or impair L. She
also did not express doubt about Father’s ability to make decisions
concerning L.’s gender dysphoria. Indeed, she implicitly found Father’s
parenting skills sufficient, as she noted that Father has a “positive and close
relationship[]” with L., who is “well adjusted,” and predicted that “Father
will make the more rational and reasonable decisions” when making
parenting decisions.
¶34 Even if the evidence showed that absent a specific limitation
on Father’s authority L. would be physically endangered or his emotional
development would be significantly impaired, the family court failed to
tailor each directive to prevent such harm. A hypothetical illustrates our
point. If the evidence showed that L. would be placed at risk for physical
danger or significantly impaired emotionally if Father chose not to maintain
therapy for L. or consult with a gender expert, the court could compel
therapy and consultation. But absent evidence demonstrating that Father
would choose an unqualified or ineffective therapist or gender expert,
§ 25-410(A) did not authorize the court to select a specific therapist and
expert.
¶35 In short, although the court had concerns about Father’s
ability to successfully guide L. through gender dysphoria, Mother failed to
show that Father’s exercise of his sole legal decision-making authority
would place L. at risk for physical injury or significantly impair L.’s
emotional development without the court’s appointment of specific
treating professionals and attendant restrictions on Father’s authority.
Absent such evidence, § 25-410(A) did not authorize the court’s
appointment orders. The evidence supports findings implicit in the court’s
orders, however, that L. would be physically endangered or suffer
significant emotional impairment if Father fails to maintain therapy for L.
or retain a gender expert or if he declines to allow L. to gender explore. On
remand, if the court makes any or all these findings, it may order Father to
continue L.’s therapy, retain a gender expert, and/or permit L. to gender
explore. See § 25-410(A).
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Paul E. v. Courtney F.
Opinion of the Court
II. A.R.S. § 25-405(B)
¶36 Mother alternately argues that § 25-405(B) authorized the
family court to appoint Vigil and Dr. Ehrensaft as “consulting experts.”
Section 25-405(B) provides that “[t]he court may seek the advice of
professional personnel” to determine legal decision-making authority and
parenting time. See also Hays v. Gama, 205 Ariz. 99, 102 ¶ 15 (2003). We
agree with the court of appeals that § 25-405(B) did not authorize the family
court to appoint Vigil and Dr. Ehrensaft. See Paul E., 244 Ariz. at 56–57
¶¶ 31–33.
¶37 First, § 25-405(B) applies only when an issue regarding legal
decision-making authority or parenting time is pending before the court.
See UMDA § 404(b) cmt. (explaining that this provision, which is identical
to § 25-405(B), “[is] designed to permit the court to make [legal decision-
making] and [parenting time] decisions as informally and non-
contentiously as possible”). Here, no such issues were pending, as the court
had already awarded Father sole legal decision-making authority and
parenting time was no longer in dispute. In other words, the court did not
need professional advice to make legal decision-making or parenting time
decisions because it had already made those decisions.
¶38 Second, even if a legal decision-making or parenting time
issue had been pending, the court’s appointment of Vigil and Dr. Ehrensaft
exceeded the authority granted by § 25-405(B). That provision only
authorizes the court to seek advice from a professional to aid it in making
certain decisions. Section 25-405(B) nowhere authorizes the court to order
treatment for a child, as occurred here.
III. ARFLP 95(A)
¶39 Mother finally argues that ARFLP 95(A) authorized the
family court to appoint Vigil and Dr. Ehrensaft. The version of ARFLP
95(A) in effect at the time of the court’s orders provided that “[i]n addition
to conciliation services, the court may order parties to engage in private
mental health services, including, but not limited to, counseling, legal
decision-making or parenting time evaluations, mental health evaluations,
Parenting Coordinator services, therapeutic supervision of parenting time,
and other therapeutic interventions.”
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Paul E. v. Courtney F.
Opinion of the Court
¶40 We agree with the court of appeals that ARFLP 95(A) did not
authorize the appointment orders here. See Paul E., 244 Ariz. at 55–56 ¶ 29.
ARFLP 95(A) is a procedural rule and cannot enlarge the court’s authority
beyond that granted by statute. See In re Marriage of Waldren, 217 Ariz. 173,
177 ¶¶ 20–21 (2007) (stating that a court rule “may address only procedural
matters” and cannot “abridge, enlarge or modify substantive rights of a
litigant” (quoting A.R.S. § 12-109(A))). As previously explained, the court’s
appointment orders infringed on Father’s sole legal decision-making
authority under §§ 25-401(3), (6) and -403, and a statutory exception did not
apply. ARFLP 95(A) does not apply here.
CONCLUSION
¶41 We vacate the court of appeals’ opinion except for ¶¶ 34–35
and 39. We vacate the family court’s orders entered March 23, March 31,
June 10, and June 13, 2016, to the extent those orders appointed and granted
authority to Vigil and Dr. Ehrensaft and limited Father’s sole legal decision-
making authority. We remand the case to the family court to determine the
attorney fee award as directed by the court of appeals and for further
proceedings consistent with this opinion.
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