from the Superior Court in Maricopa County The Honorable
Joseph C. Kreamer, Judge The Honorable Danielle Viola, Judge
of the Court of Appeals, Division One 244 Ariz. 46 (App.
F. Eckstein (argued), Michael P. Berman, Perkins Coie, LLP,
Phoenix; Todd Franks, Robert C. Houser, Franks Law Offices,
P.C., Phoenix, Attorneys for Paul E.
C. Young (argued), Mandel Young PLC, Phoenix; Steven D.
Wolfson, Michelle N. Khazai, Dickinson Wright PLLC, Phoenix;
Catherine Sakimura, Pro Hac Vice, National Center for Lesbian
Rights, San Francisco, CA, Attorneys for Courtney F.
R. Davis, The Cavanagh Law Firm, P.A., Phoenix; Annette T.
Burns, The Law Offices of Annette T. Burns, Phoenix,
Attorneys for Amicus Curiae American Academy of Matrimonial
Lawyers - Arizona Chapter
JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined.
When a family court designates one parent as the sole legal
decision-maker for a child, unless the parties agree
otherwise, the court may limit the decision-maker's
authority only as necessary to prevent endangering the
child's physical health or significantly impairing the
child's emotional development. See A.R.S. §
25-410(A). We consider whether the family court exceeded its
statutory authority by appointing specific treatment
professionals for the child here and otherwise limiting the
parent's sole legal decision-making authority. We hold
that it did.
Paul E. ("Father") and Courtney F.
("Mother") have three children including L., who
was born in 2007. Upon the parties' divorce in 2010, the
family court awarded them joint legal decision-making
authority with equal parenting time and, as relevant here,
gave Father final legal decision-making authority concerning
L.'s education and medical and dental care. Mother and
Father have clashed on several parenting issues since their
divorce, making their relationship, according to the family
court, "volatile and dysfunctional." The dispute
here stems from the parties' handling of L.'s gender
According to Mother, L., who is biologically male, displayed
an early interest in toys and clothes generally associated
with girls. Mother fostered this interest and attempted to
socially transition L. to identifying as female without
Father's knowledge or any professional consultation, with
sometimes negative consequences. For example, in February
2013, Mother subjected then-five-year-old L. to ridicule by
permitting L. to wear a skirt and other articles of
"girl" attire to school on "free dress
day" and asking the teacher to "encourage his
classmates to accept him for who he is." According to
Father, this incident was the first time he learned of
L.'s interest in wearing skirts and the like. Father
immediately sought professional assistance and, with
Mother's agreement, he retained Diana Vigil, a licensed
professional counselor, to counsel L. and advise the parties.
During the months following the "free dress day"
incident, Father and Mother parented L. differently
concerning gender identification issues. The parties agreed
with Vigil that L. would explore wearing clothing and playing
with toys typically associated with girls in Mother's
home but nowhere else. They also agreed to only speak with L.
about gender issues in a clinical environment. Although
Father abided by the agreement, Mother did not. For example,
she referred to L. with female pronouns and permitted L. to
appear in public wearing clothes generally worn by girls.
Mother also spoke with L. about matters beyond L.'s
ability to comprehend, such as sex reassignment surgery and
hormone therapy. Mother summed up the parties' situation
in a September email to Father: "We definitely disagree
about how to handle [L.'s] gender variance."
After Father learned that Mother would not follow Vigil's
advice, he petitioned the family court in December 2013 to
grant him sole legal decision-making authority concerning all
three children. See A.R.S. § 25-411(A). As
relevant here, he asserted that Mother "determined [L.]
ha[d] gender dysphoria," despite having no such
diagnosis, "insist[ed] the child . . . be treated as a
girl, rather than as a boy, and ha[d] been . . . pushing such
behavior on [L.]" At Father's request, the court
immediately ordered Mother to temporarily remove
girl-oriented toys from her house and refrain from, among
other things, dressing L. in clothing generally worn by
girls, referring to L. with feminine pronouns, and discussing
gender-related issues with L. and the other children.
Although the order applied only to Mother, Father also
followed it. The parties and L. refer to these restrictions
as "the Rule." The court also ordered diagnostic
and custody evaluations and appointed a parenting
Father's petition remained pending, and the Rule remained
in effect, for more than two years as the evaluations
occurred. Multiple medical professionals diagnosed L. with
gender dysphoria of childhood, which refers to children with
"a marked incongruence between the gender they have been
assigned to (usually at birth, referred to as natal
gender) and their experienced/expressed gender."
Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders (DSM-5) 453 (5th ed. 2013).
These professionals disagreed, however, on how best to
address the diagnosis with L.
Meanwhile, L. struggled under the Rule. L. repeatedly asked
for the return of "girl's stuff," expressed
anger over the Rule, and, under Mother's influence,
blamed Father for its existence. One incident especially
illustrates L.'s distress. In February 2015, more than a
year after implementation of the Rule, L. reportedly told
Mother, "I want to die" and would do so by hanging.
L. had purportedly made similar statements about dying to
Mother in the preceding days. Mother took L. to the hospital,
where L. expressed a desire to die due to the Rule.
Fortunately, there were no signs of self-harm, and L. did not
relate any incidences of self-harm. Hospital staff initially
placed L. on a waiting list for inpatient psychiatric care
but, after conducting a second evaluation outside
Mother's presence, they discharged L. to Father. Based on
the suicide threats and her concern that the Rule was harming
L., Mother unsuccessfully moved the court to vacate the Rule.
As the trial date drew near, Dr. Paulette Selmi, a
psychologist appointed as the custody evaluator, submitted a
lengthy and comprehensive report. She concluded that joint
legal decision-making would not be possible due to the
parents' "high level of conflict" and
recommended that one parent be given sole legal
decision-making authority. She predicted that Father
"[would] make the more rational and responsible
Despite the parents' conflicts, Dr. Selmi found L. to be
"a delightful, funny, bright, articulate, and charming
young person." L. excelled in academics, and teachers
reported that L. is very friendly, has "a lot of friends
and [is] happy," with no behavior problems. Similarly,
Vigil, who had seen L. frequently for more than the preceding
two years, described L. to Dr. Selmi as "remarkably
resilient, funny, kind, brilliant, outgoing, [and]
creative" and reported that L. "gets along well
with classmates and is well-adjusted" in school. Dr.
Selmi also found that L. has a "positive and close
relationship" with both parents and is well-adjusted
to home, school, and the community, although L. has been
teased at school regarding gender identity.
Dr. Selmi made several recommendations regarding L.'s
care. She suggested that Vigil continue to provide therapy to
L. but refrain from advising the parties on co-parenting
matters. Dr. Selmi stated that Vigil's therapy should be
a "safe haven," meaning that what transpires in
therapy would not be shared with the parents, absent L.'s
agreement, or used in litigation. She also recommended that
the court continue the Rule's "gag order"
prohibiting Mother from discussing gender issues with L. and
suggested the court consider extending the order to Father so
that L. could explore gender ...