In 2019, approximately ten years after the parties divorced, their child came out as transgender. The child first confided in Mother and feared that Father would react negatively. When Father did find out, the Court of Appeals characterized his behaviors as “harm[ful]” to his relationship with the child. The trial court found that Father “often misgendered” the child. The opinion recited other incidents and behaviors that apparently contributed to the child having recurring nightmares and attempting to self-harm.
In February 2022, Mother filed a petition to modify legal decision-making and parenting time. Father filed his own petition to enforce legal decision-making and to modify parenting time.
Eventually the family court held a trial and entered orders that awarded Mother sole legal decision-making authority and conditioned Father’s parenting time to occur “at the child’s discretion.” The family court also ordered child and Father to participate in reunification therapy with an appointed therapeutic interventionist.
Father appealed the orders concerning his parenting time and the therapeutic intervention. He argued that the family court erred by (1) delegating its best interests determination to the child and failing to create a specific parenting schedule; (2) unlawfully restricting his parenting time in conflict with A.R.S. § 25-411(J); (3) awarding Mother sole legal decision-making authority; and (4) ordering therapeutic intervention after the case concluded.
The Court of Appeals analyzed each of Father’s arguments and we encourage you to read their full analysis by following the link we provided. Understanding how the appellate panel reached its decision can be just as important as the decision itself.
For some background, it may be helpful to understand that family courts have broad discretion when it comes to determining parenting time. Really the only rigid requirements are that they consider each of the statutory factors under A.R.S. § 25-403 (the “Best Interests Factors”) and that their parenting plans comply with A.R.S. § 25-403.02. The Court of Appeals found that the family court did both.
One of the Best Interests Factors—specifically 25-403(A)(4)—requires family courts to consider the legal decision-making and parenting time preferences of children who are deemed suitable age and maturity. While there is no clear definition for suitable age or maturity, the child in this case was a teenager so the family court was required to consider their opinion.
To our knowledge, this case is one of the first to squarely address how much weight a family court can give to the child’s preferences. There have been attempts to codify a child’s “right to choose” in child custody cases but, so far, those legislative measures have been unsuccessful.
Still, the takeaway here should not be that children have an unqualified right to choose their child custody arrangements. The Court of Appeals emphasized several times that the family court properly considered all of the Best Interests Factors in reaching its decision. This is really important because it implies that the parenting time order might have been reversed if the family court simply let the child decide.
The Court of Appeals also rejected Father’s argument that the parenting plan was not specific enough. The Court of Appeals explained that the child’s best interests fully informs the parenting plan and sometimes that may require the child to have no specific parenting time with one parent.
Next, the opinion addressed Father’s argument that A.R.S. § 25-411(J) limits family court authority to restitution parenting time rights without a finding that it “would endanger seriously the child’s physical, mental, moral or emotional health.” That is what the statute says, but its application is more technical.
Arizona law distinguishes between “Parenting Time” and “Parenting Time Rights” in a way that is not always intuitive. Parenting time is defined as the schedule of time each parent spends with the child. So it probably seems like Parenting Time Rights would refer to the rights each parent has to exercise parenting time, but this is incorrect. Instead, the term Parenting Time Rights refers to what parents may do during their parenting time. That is what cannot be restricted without finding of serious endangerment pursuant to the statute. The Court of Appeals found that the family court did not restrict Father’s Parenting Time Rights so that statute did not apply.
Finally, Father argued that the family court exceeded its authority under A.R.S. § 25-405(B) when it appointed the therapeutic interventionist. While that statute does authorize family courts to make appointments like this one, it limits the authority to times when questions about legal decision-making or parenting time are pending before the family court. In this case, those questions were resolved when the family court entered its final orders.
The Court of Appeals agreed with Father that this particular statute did not authorize the appointment in this case. However, it explained that another statute—A.R.S. § 25-410(B)—does authorize family courts to make appointments after deciding legal decision-making or parenting time. Because the family court did not consider the additional requirements under that statute, the Court of Appeals vacated the appointment and sent the case back to the family court to reconsider its appointment under the appropriate statute.
