Paul E. v. Courtney F.
| Decision Date | 03 April 2018 |
| Docket Number | No. 1 CA-CV 17-0048 FC,1 CA-CV 17-0048 FC |
| Citation | 418 P.3d 413 |
| Parties | PAUL E., Petitioner/Appellant, v. COURTNEY F., Respondent/Appellee. |
| Court | Arizona Court of Appeals |
Franks Law Office, PC, Phoenix, By Todd Franks, Robert C. Houser, Jr., Co-counsel for Petitioner/Appellant
Perkins Coie LLP, Phoenix, By Paul F. Eckstein, Michael P. Berman, Co-counsel for Petitioner/Appellant
Dickinson Wright PLLC, Phoenix, By Steven D. Wolfson, Michelle N. Khazai, Co-counsel for Respondent/Appellee
National Center for Lesbian Rights, San Francisco, By Asaf Orr, Catherine Sakimura (Pro Hac Vice), Co-counsel for Respondent/Appellee
OPINION
¶ 1 In this family-law case, the superior court entered orders requiring that the parent awarded sole legal decision-making provide a child with therapy from specified providers, and that both parents abstain from certain parenting choices, including the discussion of sensitive topics with the child. We vacate those orders. No statutory authority enabled the court to direct the sole decision-maker's choices regarding therapy, or to impose parenting-time limits that infringed the parents' constitutional rights to parent and engage in free speech. The court also entered orders conferring judicial immunity on the appointed therapists. We vacate those orders because a therapist is not accountable to the court. We also vacate the court's award of attorney's fees and costs to the appellee. The award was based at least in part on the court's erroneous determination that the appellant unreasonably opposed the therapist appointments. We remand so that the court can consider whether fees are warranted based on the parties' financial disparity alone.
¶ 2 Paul E. ("Father") and Courtney F. ("Mother") married in 2004 and thereafter had three children together, including L., born in 2007. Father and Mother divorced in 2010. The decree of dissolution gave the parties joint legal custody of the children, with final legal decision-making authority awarded to Father with respect to L.'s and one of the other children's education, medical care, and dental care. Mother was awarded final legal decision-making authority with respect to the remaining child's education, medical care, and dental care. The parties were awarded equal parenting time with respect to all three children.
¶ 3 In February 2013, Mother permitted L., who was born male, to wear a skirt to school. She also sent a "Princess Boy" book for L.'s teacher to read to the class. Mother consulted with others (but no professionals) and notified L.'s school beforehand, but she failed to inform Father until after L. arrived at school. According to Mother, L. had long demonstrated a preference for stereotypically "female" items and would wear female clothing at home; Father reported no previous knowledge of L. wearing female clothing, and apparently did not observe any distinctive gender pattern in L.'s preferences. Soon after L. wore the skirt to school, Father made arrangements for L. to begin therapy with counselor Diana Vigil, who continued in that role throughout this case.
¶ 4 According to Father and Vigil, in 2013 the parents agreed, consistent with Vigil's recommendation, to limit L.'s access to female-oriented items; Mother disputed that the parties ever reached a firm agreement. In late 2013, Father filed a petition under A.R.S. § 25–411(A) to modify parenting time and legal decision-making with respect to all three children. Father alleged, as relevant to this appeal, that Mother, through various acts, was pushing a female gender identification on L. despite Vigil's failure to diagnose L. with gender dysphoria
, defined in one source used at trial as "[p]sychological distress due to the incongruence between one's body and gender identity," with gender identity meaning "[a] person's internal sense of being male, female, or something else." Father requested, inter alia , that he be made L.'s primary residential parent and be awarded sole legal decision-making. Father further requested that the court immediately limit Mother's parenting time through temporary orders and injunctions.
¶ 5 On December 13, 2013, consistent with Father's requests, the court entered the following temporary orders:
¶ 6 Vigil recommended that L. be assessed by a psychiatrist. In 2014, L. was evaluated by a series of professionals—a psychologist in July 2014, a physician in September 2014, and a psychotherapist in December 2014—each of whom diagnosed L. with gender dysphoria
. Later, Vigil also diagnosed L. with gender dysphoria.
¶ 7 The temporary orders, however, remained in place. And Father, to whom the orders did not apply, did not afford L. access to "female" items during his parenting time. According to Father, he was never unwilling to provide L. the opportunity to engage in "gender exploration" but he and Mother believed that the temporary orders applied to both parents. Father reported that Mother was repeatedly noncompliant with the orders; Mother maintained the opposite.
¶ 8 In early 2015, L. made statements about dying, and either threatened or engaged in self-harm. Mother did not promptly notify Father when she took L. to the hospital in response to that behavior. Also in early 2015, Mother reneged on her promise to Father to take L. and another of the parties' children to a sacramental religious ceremony at Father's church.
¶ 9 In mid–2015, Vigil told the parties, and Father agreed based on a log he kept of L.'s statements and behaviors, that L. had become more comfortable with L.'s natal gender. Mother apparently informed L. of Vigil's conclusion, which caused L. to distrust Vigil. And, according to Father, Mother then significantly increased her violations of the temporary orders, and L. increasingly engaged in feminine behaviors. L. also assigned blame to Father for the temporary orders.
¶ 10 By stipulated order, the court appointed Dr. Paulette Selmi, a psychologist, to perform a custody evaluation. Dr. Selmi opined that the manner in which Mother responded to L.'s desire to wear a skirt to school did not take into account the need to protect L. Dr. Selmi further determined that Mother exposed L. to inappropriate information regarding sex reassignment, and failed to comply with the parties' 2013 agreement and the court's temporary orders. Dr. Selmi opined that Mother's conduct demonstrated a lack of foresight. Dr. Selmi conceded that the temporary orders had harmed L., but she concluded that a "social transition" was not in L.'s best interests because of L.'s young age, and "[i]t is best to take a slower approach to the situation." Dr. Selmi recommended that the temporary orders "be lifted at this time but not entirely," by remaining in place at Mother's home for at least six months to a year and being lifted entirely at Vigil's office and in Father's home for six months to a year. Dr. Selmi recommended that only Vigil discuss the change with L., "because [the parents] do not work well enough together to do this." Further, finding that Mother has "a proven track record ... of talking to [L.] about very inappropriate things i.e. hormones, sex change operations and the like," Dr. Selmi recommend that the court enter a " ‘gag order’ prohibiting Mother [and potentially Father as well] from discussing anything with [L.] related to this topic." Dr. Selmi opined that L. "must" continue therapy with Vigil, preferably on a "safe-haven" basis to restore and preserve L.'s trust in Vigil, and further stated that "there also needs to be a physician gender specialist who will follow [L.] along the way."
¶ 11 Father's petition to modify proceeded to a four-day trial in December 2015. By that time, the only question was legal decision-making—Father withdrew his request for a modification of parenting time, explaining that "kids need their mom" and he had not originally thought of managing his concerns...
To continue reading
Request your trial
-
Paul E. v. Courtney F.
...on Father’s exercise of his sole legal decision-making authority concerning L. Paul E. v. Courtney F. , 244 Ariz. 46, 48 ¶ 1, 418 P.3d 413, 415 (App. 2018). Specifically, the court held that the family court lacked authority to choose L.’s therapists, to order the parties to refrain from ma......
-
Brittner v. Lanzilotta
...to the parties, and not as an expert to assist the court, relying in part on Paul E. v. Courtney F. , 244 Ariz. 46, 56-57, ¶ 32, 418 P.3d 413, 423–24 (App. 2018) (review granted in part Nov. 20, 2018). Brittner, however, admits that Lanzilotta was appointed by the court. He also acknowledge......
-
Berrier v. Rountree
...here, imposing specific limitations on the authority under § 25-410(A). Paul E. v. Courtney F. , 244 Ariz. 46, 54–55, ¶¶ 25–27, 418 P.3d 413, 421-22 (App. 2018).¶ 11 Even a parent with sole legal decision-making authority does not have the inherent power to relocate his or her child to anot......
-
Exploring Identity
...WL 2357621 (Conn. Super. Ct. June 2, 2009). 158. 439 P.3d 1169, 1178–79 (Ariz. 2019). 159. Id. at 1171. 160. Id. ; Paul E. v. Courtney F., 418 P.3d 413, 415 (Ariz. Ct. App. 2018), vacated in part , 439 P.3d 1169 (Ariz. 2019). The book was likely cheryl kiloDaVis, my princess Boy (2009). Pub......