Arizona Appeals Court Endorses Parent’s Right to Raise Transgender Child in Accordance With Child’s Gender Identity

By Ryan Nelson

Ryan Nelson is corporate counsel for employment law at MetLife in New York City.

In Paul E. v. Courtney F., 2018 Ariz. App. LEXIS 52, 2018 WL 1602496 (Ariz. Ct. Appl. Apr. 3, 2018), a three-judge panel of the Arizona Court of Appeals (comprised of Judges Peter B. Swann, Jon W. Thompson, and James P. Beene) considered an appeal concerning the upbringing of a transgender child of divorced parents. Upon the divorce of Paul E. (the “Father”) (represented by Todd Franks and Robert C. Houser, Jr. from Franks Law Office, PC and Paul F. Eckstein and Michael P. Berman from Perkins Coie LLP) and Courtney F. (the “Mother”) (represented by Steven D. Wolfson and Michelle N. Khazai from Dickinson Wright PLLC and Asaf Orr and Catherine Sakimura from the National Center for Lesbian Rights), the Father and the Mother were awarded joint custody of L. — a minor child who was assigned the sex of male at birth (the “Child”) — but the Father was given final legal decision-making authority with respect to L.’s education and medical care.

According to the Mother, L. preferred “stereotypically ‘female’ items” and would wear female clothing at home. Yet, the Father denied that L. had any such preference. After the Mother permitted L. to wear a skirt to school and asked L.’s teacher to read a book titled Princess Boy to L.’s class, the Father arranged for L. to meet with a therapist who failed to diagnose L. with gender dysphoria. Subsequently, the Father asked the Superior Court of Maricopa County, Arizona, to make him L.’s primary residential parent, to award him sole legal decision-making authority over L., and to limit the Mother’s parenting time. The trial court entered temporary orders consistent with the Father’s requests, requiring the Mother, inter alia, not to dress L. in female clothing, not to purchase female-oriented toys for L., and not to refer to L. as a girl or as “her” or “she.”

The following year, medical professionals diagnosed L. with gender dysphoria, yet the temporary orders remained in place pending trial. After trial, the Superior Court, inter alia, awarded the Father sole legal decision-making with an obligation to consult in good faith with the Mother, appointed a therapist to treat L., lifted the temporary restrictions on the Mother’s parenting in certain locations (i.e., the therapist’s office and the parents’ homes), permanently ordered these parenting restrictions everywhere else, and prohibited either parent from discussing gender identification issues with L. or promoting or discouraging a specific view of L.’s gender identity. The Father appealed.

First, the Court of Appeals, considering the trial court’s restrictions on the Father’s legal decision-making authority, reasoned that the court’s role is to assess which parent should hold the responsibility for legal decision-making based on the best interests of the child, rather than to engage in such decision-making itself. “The court does not have plenary authority to make decisions in place of the parents when it deems them to be in a child’s best interests,” wrote Judge Swann, unless a narrow exception applies — specifically, if and only if the court finds that limiting the sole legal decision-maker’s authority is necessary so as not to endanger the child’s physical health or significantly impair the child’s emotional development. Moreover, even if the court invokes this rare exception, it can merely limit the legal decision-maker’s authority, not direct the legal decision-maker to act in a particular manner. Accordingly, the court concluded that the trial court erred as a matter of law with its order limiting the Father’s decision-making authority for two reasons: (1) it had acted despite no finding that the Father (i.e., the sole legal decision-maker) was endangering L.’s physical health or significantly impairing L.’s emotional development, and (2) it had directed the Father to engage a particular therapist for L. rather than limiting the Father’s authority in some way. Similarly, the court concluded that the trial court had impermissibly appointed a therapist to treat L., because state law permitted the appointment of a therapist only as a judicial advisor and not as a treating physician, again emphasizing that the court generally lacks the authority to direct the legal decision-maker’s authority in such a manner.

Second, the court considered the trial court’s restrictions on both parents’ parenting time. Judge Swann explained that a court may restrict parenting time only if such parenting time would “endanger seriously the child’s physical, mental, moral or emotional health” and, even then, the court could not infringe upon the constitutional rights of parents to rear their children or the parents’ or child’s rights to free speech. Therefore, the court concluded that the trial court had, again, erred as a matter of law by restricting parenting time because: (1) it had acted despite a finding that such parenting time would seriously endanger the child’s health, and (2) it had impermissibly infringed upon the constitutional rights of the Father, the Mother, and L.

In conclusion, the court vacated the trial court’s orders directing the Father’s sole legal decision-making and the parents’ parenting time. This case emphasizes a recurring theme in family law—that the rights of parents to raise their children (absent a showing of harm to the child) generally shall not be micromanaged by the government. Advocates of the rights of transgender children to grow up as themselves and of parents of transgender children to raise their children accordingly can proudly turn to this case as an example of their government upholding their rights.


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