Gish v. Greyson
| Decision Date | 28 June 2022 |
| Docket Number | 1 CA-CV 21-0472 FC |
| Citation | 73 Arizona Cases Digest 9,514 P.3d 937 |
| Parties | In re the Marriage of: Jeremy Michael GISH, Petitioner/Appellee, v. Jennifer Ann GREYSON, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
Rowley Long & Simmons PLLC, Mesa, By Scott R. Rowley, Counsel for Petitioner/Appellee
Alexander R. Arpad, Phoenix, Counsel for Respondent/Appellant
Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
¶1 Jennifer Ann Greyson ("Mother") appeals from the superior court's order awarding her nearly all parenting time but awarding Jeremy Michael Gish ("Father") sole legal decision-making authority over their child. Mother argues that the parenting order is not authorized by statute and is not in the child's best interests. She also maintains that the 2021 Parenting Order and the later order appointing a court-ordered behavioral interventionist ("COBI") unlawfully delegated the court's authority to the behavioral therapists. And she claims that the COBI order improperly modified the parenting order in violation of A.R.S. § 25-411. Finally, she asserts that the court erred by requiring her to pay for the therapeutic interventionist ("TI") and the COBI, and requests that we accept special action jurisdiction over a contempt finding.
¶2 We hold that the superior court is statutorily permitted to award to one parent most of the parenting time and the other parent sole legal decision-making if it determines it is in the child's best interests. We also hold that the court may not delegate its authority to assess a child's best interests or adjust parenting time to a behavioral professional, including, but not limited to, a TI or a COBI, as its orders did here. The court also erred here by not determining whether Mother and Father could pay for those professionals. We, therefore, vacate the 2021 Parenting Order in part, vacate the order appointing a COBI, and remand to the superior court for further proceedings consistent with this opinion. We decline special action jurisdiction over the court's contempt finding.
¶3 Mother and Father are parents to Griffin,1 who has been diagnosed with autism
spectrum disorder. Their parenting relationship over the years has been highly contentious, with various misconduct allegations levied by each against the other. The court's and the behavioral professionals’ perception of those allegations has shifted over time, leading to the 2021 rulings now at issue.
¶4 Father filed for divorce in 2017, and the court entered the dissolution decree in early 2018. In the decree, the court found that Mother had taken unreasonable positions throughout the litigation, refused to allow Father to have parenting time, made unsubstantiated child abuse allegations against Father, sought to rescind the parties’ Rule 69 agreement without justification, filed multiple baseless pretrial motions, and requested voluminous records from Father that she received but did not review. Still, the court adopted the parties’ Rule 69 agreement, in which they agreed to exercise joint legal decision-making with an equal parenting schedule. See Gish v. Greyson , 1 CA-CV 18-0258 FC, 2020 WL 6852555 (Ariz. App., Nov 17,2020 ).
¶5 Seven months later, Mother petitioned to modify legal decision-making and parenting time. See A.R.S. § 25-411(A) (). Mother alleged that Griffin had been diagnosed with post-traumatic stress disorder
("PTSD") and hospitalized twice for suicidal ideations due to fear and trauma from Father's abuse. She alleged that Griffin stated he "would rather jump off a bridge than go to [Father's] house," and he would rather die than see Father. At the hearing on the petition, the court admitted a hospital discharge report in which Griffin claimed that Father had shown him pictures of abused children and mocked and humiliated him. Father admitted that he once spanked Griffin and put him in the shower with his clothes on.
¶6 After considering the evidence, the court issued a post-decree parenting order in August 2019 ("2019 Parenting Order"). The court recognized that "[t]he parties have a very strained relationship" and "[t]hey do not cooperate well at all in co-parenting the child." The court also considered Mother's history of "taking unreasonable positions" and "making unsubstantiated allegations." It acknowledged that Griffin's autism
might cause him to react differently to Father's discipline than children without autism and that Mother may have improperly influenced him. The court noted that it had to make its best-interests findings "without having a clear answer to [the] central question" of whether Griffin's suicidal ideations arose out of Father's mistreatment, Mother's influence, or a combination of both.
¶7 The court weighed the best-interests factors under A.R.S. §§ 25-403 and -403.01. Despite questioning the parents’ ability to engage in cooperative decision-making, the court determined it was in Griffin's best interests that Mother and Father continue with joint legal decision-making, with Mother having the final say on issues for which the parents could not agree. As a result, the court awarded Mother most of the parenting time. It granted Father supervised parenting time as directed by the TI until she determined Griffin was ready to have unsupervised time with Father. The court ordered the parties to follow the TI's recommendations to gradually increase Father's parenting time until she found it appropriate to return to an equal parenting schedule.
¶8 The parties worked with the TI for several months, and in December 2019, the TI submitted her report to the court. She stated that Griffin had begun visiting Father unsupervised and staying overnight, despite recently telling her that he was not ready for unsupervised visits. The increase in Father's parenting time coincided with Mother's new employment, leading the TI to believe that Mother may have had "much more influence over [Griffin's] opinions about parenting time with Father than [Mother] originally let on." The TI also noted that Father claimed Mother had canceled "three or four" out of eight therapy sessions. This led to the concern that Mother only supported Father's relationship with Griffin when it benefitted her.
¶9 The TI recommended that the parents continue to work toward equal, unsupervised parenting time and that Griffin continue individual and family therapy. But the TI expressed "grave concerns" that Mother had undue influence over Griffin's perception of Father. She suggested the court consider sanctioning Mother if she were to restrict Father's parenting time or interfere with Griffin's therapy. Without conducting a hearing on the recommendations, the court adopted them.
¶10 Only two months later, the TI reported that Griffin no longer felt safe with Father and refused all contact with him. Griffin informed the TI that Father pressured him to agree to unsupervised parenting time. He also claimed that Father forced him to perform manual labor in Father's motorcycle shop and mocked him when he could not move heavy motorcycles. Griffin told the TI that Father did not make him take his prescribed mental health medication. The TI reported that she was "at a loss about how to move forward with this case." She was concerned that Father's dishonesty, recklessness, and irresponsibility were ingrained, and that Mother easily influenced Griffin. She expressed doubt about resolving "the high conflict situation" considering "the minimal progress that [had] been made."
¶11 In March 2020, Father petitioned to modify parenting time and legal decision-making under A.R.S. § 25-411(A) because Mother refused to comply with the 2019 Parenting Order. Father alleged that Mother had once again influenced Griffin, as Mother claimed that Griffin no longer wanted parenting time with him. Father stated that the TI's "grave concern" had been fully realized, and the issues the TI predicted were now occurring. He claimed Mother stopped paying the TI despite owing her $2500, leading the TI to end communication with the parties. He contended that Mother refused to participate in co-parenting therapy and began scheduling other therapy sessions only at her home. He also alleged that Mother transferred Griffin's therapy and medication management to a provider to accommodate her and Griffin's needs, telling Father he did "not get a say as to where or when [Griffin's] individual therapy takes place." He argued that Mother had willfully violated the 2019 Parenting Order and requested that the court grant him sole legal decision-making and designate him the primary residential parent.
¶12 The TI asked the court to release her from her appointment as the parents now owed over $3000 for her services and because Mother claimed the TI was "retraumatizing her." The court declined to release the TI. In her August 2020 report, the TI questioned Father's ability to parent without supervision after he appeared to be under the influence, refused a hair follicle test, and tested positive for marijuana. She also had concerns about Father's honesty. She listed a series of lies Father had told her, including his claim that Mother had failed to take Griffin to multiple therapy sessions when it was the therapist that canceled or rescheduled. But the TI also believed Mother strongly influenced Griffin's negative perception of Father. The TI recommended that Father's parenting time be supervised until Griffin felt safe in his care and urged the court to sanction Mother if she interfered with Griffin's therapy or refused to facilitate visits between Father and Griffin. In September 2020, the TI reported that she had continued trying to encourage supervised...
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