Paul E. v. Courtney F.

418 P.3d 413
CourtCourt of Appeals of Arizona
DecidedApril 3, 2018
DocketNo. 1 CA-CV 17-0048 FC
StatusPublished
Cited by2 cases

This text of 418 P.3d 413 (Paul E. v. Courtney F.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paul E. v. Courtney F., 418 P.3d 413 (Ark. Ct. App. 2018).

Opinion

SWANN, Judge:

¶ 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.

FACTS AND PROCEDURAL HISTORY

¶ 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 *416recommendation, 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:

• Until further Court order, Mother shall not dress [L.] in female clothing, shall not purchase female or "girl" clothing for [L.], shall not to [sic] permit [L.] to dress in female clothing (including, but not limited to underwear, socks, shirts, dresses, skirts, etc.), shall not purchase female oriented toys or other items for [L.], shall not refer to [L.] in his presence or in the presence of any of the other children as "her" or "she," shall not refer to [L.] as a "girl" or by other female designation, and shall not encourage any of the parties' other children to do so, shall not to [sic] encourage or direct third parties to refer to [L.] as "her," as "she[,]" as a "girl," or as other female designation, or to treat him as such, and shall not to [sic] take any other actions that are inconsistent with the spirit of these orders.
• Until further Court order, Mother shall remove from her home any female or "girl" clothing of or for [L.] and any female oriented toys or other items of or for [L.] Mother may store such items elsewhere for later use in the event the Court later modifies or vacates these orders.
• Until further Court order, Mother also shall direct the parties' children not to refer to [L.] as "her," as "she," as a "girl" or as other female designation, or if Mother hears or becomes aware of any of those children doing so [sic].
• Until further Court order, Mother shall not refer to [L.] as "gender variant" or use such term or any related terms in [L.]'s presence or in the presence of the parties' other children. Mother further shall refrain from any discussion of gender related issues with [L.], with any of the parties' other children or in [L.]'s or any of the parties' other children's presence.
• Mother shall not provide [L.] or any of the parties' other children with any materials addressing gender preference.
• Mother shall not take any actions to frustrate or defy the spirit of any of the foregoing 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'

*417children 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.

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Related

Paul E. v. Courtney F.
439 P.3d 1169 (Arizona Supreme Court, 2019)
Berrier v. Rountree
433 P.3d 8 (Court of Appeals of Arizona, 2018)

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Bluebook (online)
418 P.3d 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-e-v-courtney-f-arizctapp-2018.