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Paul E. v. Courtney F.

Court of Appeals of Arizona, First Division

April 3, 2018

PAUL E., Petitioner/Appellant,
v.
COURTNEY F., Respondent/Appellee. [1]

          Appeal from the Superior Court in Maricopa County No. FC2010-051045 The Honorable Joseph C. Kreamer, Judge The Honorable Danielle Viola, Judge

          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

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Jon W. Thompson and Judge James P. Beene joined.

          OPINION

          SWANN, Judge.

         ¶1In 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

         ¶2Paul 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.

         ¶3In 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.

         ¶4According 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 "[psychological 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.

         ¶5On 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.

         ¶6Vigil 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.

         ¶7The 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.

         ¶8In 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.

         ¶9In 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 regarding Mother's behavior via "the gag order that Dr. Selmi had advanced." The court notified the parties at the outset of the trial that the court intended to itself direct certain decisions regarding L.'s therapeutic care. The court stated that there is "a school of thought with some judges that [the court] say[s] . . . somebody has legal decision-making[, t]hat person makes the call[, ] . . . [and t]he judge doesn't jump in the middle of it, " but in view of "the history that you've got about not agreeing on things and the complexity that we've got with respect to [L., ] . . . I'm likely going to address it, " because "we've gotta address the rule [i.e., the temporary orders] and we've gotta address what's going to happen going forward and who's in place and who's not from a professional standpoint, and I intend to do that." Both at trial and thereafter, Father disputed the court's authority to make decisions regarding L.'s care.

         ¶12 At trial, Father and Mother agreed that L. would benefit from continued therapy and the care of a gender specialist. They disagreed, however, on how best to support L. Father advocated a conservative approach, in line with the recommendations of Dr. Selmi and the psychologist who diagnosed L. Mother had taken an active approach, more consistent with the views of the physician who diagnosed L.

         ¶13 Before the court ruled on the petition to modify, the parties sought guidance from the court regarding the role it envisioned for a court-appointed "gender expert." At a status conference on February 26, 2016, the court stated that it anticipated Vigil would continue as L.'s therapist. The court further stated, with respect to the gender expert, that:

from the court's perspective, this [gender-expert] assignment is going to be as a treating professional, not serving the Court. I don't envision it as a forensic ...

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