The Arizona Court of Appeals recently ruled that trial courts do not have the authority to choose a school for a child.  Courts may choose the parent who may make the decision, and courts may take into account in which school the parent would choose in making that decision, but the courts may not impose their own decision.  I wrote about that decision here: https://www.thomasamortonlaw.com/blog/item/94-family-courts-may-no-longer-decide-education-and-medical-decision-disputes-between-parents

 

Now the Court of Appeals has further limited trial courts’ authority to impose decisions on parents, recently ruling that the Family Court may not choose counselors for the children, prohibit discussing certain things with the children, and make other parenting decisions for the children.  The Court of Appeals again ruled that the Family Court may not make parenting decisions, but can only decide which parent will make them.

 

The parents married in 2004 and had three children. The parents divorced in 2010 with the parties having joint legal custody of the children, with Father having final legal decision-making authority for two children, including “L,” and Mother having final legal decision-making authority for the other child. The parties had equal parenting time.
 
In February 2013, Mother sent L to school wearing a skirt and carrying a book, Princess Boy, for his teacher to read to the class. Mother did not inform Father until after L arrived at school. Mother claimed that L had long preferred female-oriented items and would wear girls’ clothing at home. Father claimed to have no previous knowledge of this preference.  After L wore the skirt to school, Father made arrangements for L to begin therapy with L’s counselor.  Father claimed that Mother was pushing L to identify as female even though L’s counselor did not diagnose L with gender dysphoria.

 

The trial court ordered Father to provide L with therapy from specified providers, and that both parents not make certain parenting decisions, including discussion of certain topics with L. The Court of Appeals vacated those orders because no statutory authority enabled the court to direct the parenting decisions regarding therapy, or to impose parenting time limits that infringe the parents’ Constitutional rights to parent and engage in free speech.

 

The Court of Appeals made the following holdings: 

 

1.  The statute allowing the court to limit a parent’s authority does not allow the trial court to impose guidelines on  legal decision-making by appointing a specific therapist to treat child;

2.  The statute allowing the court to seek advice of professional personnel does not allow the trial court to appoint the child's longstanding, privately retained counselor to provide therapy or to grant judicial immunity to the counselor;

3.  The statute allowing the court to seek the advice of professional personnel does not allow the trial court to require an expert in gender issues to provide input to the parents, the child's therapist, and the court; 

4.  Father did not unreasonably oppose appointments of the therapist and expert; and

5.  The statute allowing the court to restrict parenting time rights does not allow the court to prohibit parents from speaking with a child about gender identification and or to provide the child with female-oriented items.
 
You can read the Court of Appeals decision here: https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2018/1%20CA-CV%2017-0048%20FC.pdf

 

This decision is part of a larger trend of the Arizona Court of Appeals limiting the Family Court’s authority to impose parenting decisions on parents and returning that authority to individual parents consistent with Arizona’s revised domestic relations statutes enacted in 2013.  Right or wrong, parents have the right to make their own decisions without a judge imposing decisions on them.  In 2013, family law lawyers all focused on the changes in the new statutes that appeared to enact a strong preference for joint legal decision making and equal time.  We were correct about that, but we all overlooked the change in the wording of the statute for legal decision making that ultimately resulted in a limitation on the Family Court’s authority to make decisions for parents.