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AZ Supreme Court says judges can ensure that parents provide a transgender child with needed care and support for gender dysphoria
(Phoenix, AZ, April 25, 2019)—Today, the Arizona Supreme Court issued a decision in Paul E. v. Courtney F., holding that family law judges may limit a custodial parent’s authority when necessary to protect a child from harm, including by ordering that a child receive counseling, but that such orders must be narrowly tailored to the specific circumstances in each case.
Paul E. and Courtney F. disagreed about the appropriate response to their child’s gender dysphoria. After a week-long trial, the judge issued an opinion awarding primary custody to the father, but also ordering that the child’s then-current therapist continue treating the child. The court also appointed an expert in the mental health of transgender children to advise the parties and the court about ongoing treatment. The father appealed, claiming that the trial judge did not have the authority to make those decisions. The Arizona Court of Appeals agreed and reversed the trial court, holding that family law judges cannot require that a custodial parent provide counseling for a child or appoint a specific counselor. The Arizona Supreme Court then granted the mother’s request to review the Court of Appeals’ decision.
The Arizona Supreme Court reversed, holding that Arizona law authorizes the family court to limit a custodial parent’s authority to protect a child from physical or emotional harm, including requiring a parent to provide a child with medically needed counseling or care. As the Supreme Court explained, “refusing to retain particular therapeutic services could justify an order requiring such services if refraining from doing so would endanger the child’s physical health or significantly impair the child’s emotional development.”
In this particular case, however, the Supreme Court found that the trial court’s order did not include the specific findings to support requiring the father to send the child to a particular therapist. The Court explained: “If the evidence showed that [the child] would be placed at risk for physical danger or significantly impaired emotionally if Father chose not to maintain therapy for [the child] or consult with a gender expert, the court could compel therapy and consultation. But absent evidence demonstrating that Father would choose an unqualified or ineffective therapist or gender expert, [the statute] did not authorize the court to select a specific therapist and expert.”
The Supreme Court remanded the case to give the trial court judge an opportunity to issue a new order based on today’s opinion, stating: “The evidence supports findings implicit in the court’s orders . . . that [the child] would be physically endangered or suffer significant emotional impairment if Father fails to maintain therapy for [the child] or retain a gender expert or if he declines to allow [the child] to gender explore. On remand, if the court makes any or all these findings, it may order Father to continue [the child’s] therapy, retain a gender expert, and/or permit [the child] to gender explore.”
“We are pleased that the Arizona Supreme Court affirmed that family-court judges have the flexibility to craft custody orders that protect children from harm, including requiring a custodial parent to provide a gender nonconforming child with supportive counseling and care,” said Shannon Minter, Legal Director at the National Center for Lesbian Rights. “This is particularly important for transgender children who require specialized healthcare to address their unique needs.”
“This is an important decision that will provide family courts with more guidance about when to issue orders limiting a custodial parent’s authority and about the need to tailor such orders carefully, based on the specific circumstances in each case,” said Taylor Young, the attorney who argued the case at the Arizona Supreme Court. “Family court judges must be able to protect children from harm. Today’s opinion preserves their ability to do so, including by ensuring that children receive necessary counseling and care.”
NCLR and Arizona attorneys Taylor Young of Mandel Young plc and Steven Wolfson of Dickinson Wright PLLC represented Courtney F.
The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.org